Public Bill Committee

[Ann Winterton in the Chair]

Clause 143

Public sector equality duty

Amendment moved (this day): 249, in clause 143, page 105, line 13, at end insert
(2) Subsection (1)(b) does not apply in so far as it relates to religion or belief..(Dr. Evan Harris.)

This amendment removes the duty on public authorities to have regard to promoting equality of opportunity between religious people.

Ann Winterton: I remind the Committee that with this we are discussing the following: amendment 49, in clause 143, page 105, line 32, at end insert
(4A) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves ensuring a proper balance between the rights of persons who share a relevant protected characteristic and the rights of persons who share a different relevant protected characteristic..

Prevents public authorities using the public sector equality duty to favour the rights of one group over another.
Amendment 297, in clause 143, page 105, line 32, at end insert
(4A) In complying with its duties under this section, a public authority shall not inhibit lawful free expression..

This underpins the need to preserve lawful freedom of expression in public life.

Evan Harris: It is a pleasure to welcome you back to the Chair, Lady Winterton.
I had set out why we were particularly concerned to deal, in our amendment, with the quality of opportunity limb of the positive duty and its relation to religion and belief, not limbs 1 and 3 and limbs A and B of subsection (1). I also explained that, even if subsection (1)(b) survivedmy probing amendment would delete itchanges to subsection (3) would be needed, because of the concern about how subsection (3)(b) might work in practice in relation to religion and belief. It may not even be necessary to delete that paragraph; it may be necessary only to qualify it in some way to ensure that we gain the intended benefits without the drawbacks.
I was discussing with the hon. Member for Glasgow, East whether needs was an objective term. I am concerned that nothing in the structure will require a public authority to judge whether the needs that are cited, which may be genuine from the point of view of the individual or the religious community that claims to have them, are reasonable to meet. Will the Minister clarify whether it is her view that some form of reasonableness test exists in relation to that?
Clearly, having regard to something does not require one to do it, and the public authority may still not consider it reasonable to do. I am concerned that the expectations of individuals who seek to have their needs met may be raised, but that they may not realise that, although public authorities should have regard to something, that wording still allows them to say that, in all circumstances, either it is legitimate for them not to meet those needs or that meeting them would not be the most effective way to deliver services.
Our concerns about this matter are set out by the Equality and Human Rights Commission in its briefing, which seeks to rebut those concerns, and stem to a certain extent from work done and concerns raised by Lord Lester of Herne Hill, who has been engaged in correspondence with the EHRC and has recently published an article, co-authored with Paola Uccellari, in a law journal, setting out his concerns in more detail.
The fundamental questions in relation to the provision are, first, whether there is a judgment about whether the needs are reasonable and, secondly, whether this will lead to a call for and a meeting of the demand for services to be delivered to people on religious grounds. This is different from the other strands, as I was saying when discussing the point with the hon. Member for Glasgow, East, because there are no other grounds on which public services can be delivered, to the same degree, in a discriminatory way. There is no exception in any schedule for services to be delivered on the basis of an ethos specifically to people of one gender, race or form of ability or disabilitythat is no surprisebut there is a wide exemption in schedule 23 that enables public services to be delivered by organisations of a religious ethos only to users of those services who pass a religious test. That is why, when considering public authorities and public functions, one cannot claim that religion is therefore just like every other strand.

John Mason: The hon. Gentleman seemed to suggest that no other strand or protected characteristic is allowed special exemption or protection. However, I understand that virtually every strand is. He mentioned disability. Clearly, many organisations, including public authorities, are allowed to favour and help those who are disabled.

Evan Harris: I was very careful about what I said. I spoke about the structure of the exemption in schedule 23. Of course the Bill allows for services to be provided in specific ways that are appropriate to individual needs. However, schedule 23 is different. The hon. Gentleman must accept that. Paragraph 2(10) states:
This paragraph does not permit anything which is prohibited by section 27
which is about not discriminating in the provision of services
so far as relating to sexual orientation,
but not to religion. That applies to services provided on behalf of a public authority or
under the terms of a contract between the organisation and the public authority.
Things are entitled in relation to religion that are not entitled in relation to sexual orientation, which is peculiar.
There is a wide exemption for religion elsewhere in schedule 23, relating to religious ethos. A restriction is permitted
relating to religion or belief only if it is imposed...because of the purpose of the organisation, or...to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.
That is a pretty wide provision that is not allowed in respect of any other characteristicfor example, sexual orientation.
Before we broke for lunch, I was about to explain another reason why religion is different. The hon. Member for Glasgow, East said that to exclude religion and belief from part of the positive duty provision would be setting it aside for different treatment from the other strands. However, it is already treated differently by legislation and by the House, which voted to have different approaches for religion and race in respect of incitement to hatred, even though the mischief makers might be similar, because it recognised that religion was differentit relates to belief, which is not as innate a characteristic as the other strands.
Inevitable conflicts arise between different religions because of freedom of speech. That does not exist for the other strands. One persons strong expression of religious belief is another religions blasphemy. Long may that continue. I am a strong believer in the right to religious belief and the right to express religious belief, even if it offends other people. That is the nature of having free speech for religions. However, one cannot say that about any other strand to the same extent. My point is that religion is already recognised to be different. The organisations that have supported the hon. Gentlemans amendments were on my side of the argumentthey may say that I was on their side of the argumentwhen we debated the need to ensure that incitement to religious hatred was treated differently from the other strands. I stress that there is precedent for this.
The arguments about why there is a problem boil down to four or five areas that I will go through. I will try to deal with the rebuttals that might come. The first problem is that a duty to advance equality of opportunity for religion or belief may inspire and entrench resentment, rather than dispel it, even though that may not be the intention. It will engage public authorities, such as local councils that are already overstretched, in matters that should not concern them and that are a distraction to their main mission. There is a real problem that organisations or individuals of a certain religious belief will seek to say, Why cant I have this service delivered to me in the way that I want? You have a duty to do it. Such cases will occur quite frequently, and the corollary will be absurd calls for local authorities not to engage in Christmas celebrations because they do not advance equality of opportunity across all religions.
Essentially, subsection (3)(b) involves the meeting of needs on an equal basis. The Government may not intend to cover specific and unique support by a public authority for a religious festival such as Christmas, which is the most important festival of the most commonly held religious belief in this country, but that is what may flow from the measure. That already happens, and the danger is it will happen even more.
Another concern is that there will be a blurring of the boundary between needs that are based on holding a religion and needs to implement, or see manifested more widely, the consequences of that religion. For example, public authorities may be asked, regardless of whether it is the intention of the statute, to make extra provision to allow employees to discriminate in line with their religions beliefs on the basis that they have that need. I do not doubt that many religious people genuinely feel that they have a need not to be forced to register gay partnerships. The Minister has been clearperhaps not as clear as she could be if the measure was set out in statutethat it is unacceptable for an employee of a public authority performing a public duty to discriminate on another ground in the exercise of those public functions. However, there will be calls for that based on the public duty, which would be regrettable given that, even before we have the public duty, there are already those calls that cannot be justified.
Another concern is that organisations and individuals will argue that public authorities need to support their religion in the way in which the state supports the established Church and other Churches more broadly through certain exemptions for places of worship and so forth. If the authorities do not support their religions in cash terms, they will argue that it is not equality of opportunity.
Naturally, many of the views and opinions held by religious people are dictated by religious doctrine, and they relate to areas of public policy. On the basis of public sector duty, does the Minister understand the risk of public authorities being asked to have regard of some religions that do not want to have gambling in the local authority area or sex education in state-run schools?
If evolution is being taught in schools, some may argue that creationism should be taught as well. Again, it is hard to argue that that is a need. Moreover, it is hard to argue that that is not a need that is different from the needs of people who do not share the belief, or the relevant protected characteristic. I can see nothing in the provisions construction that will give an obvious defence to local authorities that will enable them to strike out such a claim at the outset. We need something that can be pointed to in statute that shows that the public authority can say, No, we are not going to do that. It is not justified. If we do not have that, the public authority will have to say, Okay, we will investigate it and see if we can reach a compromise, and we accept that you have a need that is specific to your religion and more and more claims will be made under the duty.
I should be grateful to the Minister if she told us how a local authority and an education authority will respond to an argument made under subsection (1)(b) and (3)(b) that their need to have creationism taught should be met on the basis of equality of opportunity. We have already debated the fact that people cannot claim discrimination if creationism is not taught in the curriculum, because the curriculum is exempted from such claims. However, I am not talking about that. What comes into play here is the positive duty outside of simply not discriminating
A further concernmy real onethat I hope the Minister will be able to address at some point is that religious organisations funded by public authorities are involved in the provision of public services. We know that such organisations claim that they need to provide services for a particular group of people, which I can accept in principle, or that, because of their ethos, doctrine or the need not to offend people who are of their belief, they want the right to discriminate in the provision of public services on the grounds of religion and belief. That meansand we can see it happening nowthat public services are delivered by religious organisations under contract to a public authority to specific religious groups. Such organisations say that they are catering only for those religious groups. I have concerns about that, which I will discuss in relation to schedule 23.
My point is that if we couple that with the right of everyone to have their needs met, what is to stop every religious community saying, Well, you fund this organisation with cash to provide this service to their people. We think you should provide this service to our people through our organisation. Again, I cannot see how the local authority will be able to resist that request or, at least, not feel under great pressure to do so and, indeed, to defend itself in court if necessary. Such a measure will have created the start of what I have described as the trend towards the balkanisation of services.
We are asking for some stop on that processperhaps through some restriction on discrimination on the grounds of religion in respect of the exemption permitted under schedule 23. I say to the hon. Member for Glasgow, East that that would still allow the sort of provision that is already allowed in other areas, but not under such a wide exemption. Alternatively, there should be some stop within the measure that enables public authorities to have due regard to the matter. I know my feelings about the splitting up of public services in that way are shared by many people, especially in the House of Lords.
I have already said that there is a concern that the provision will be misunderstood by religious organisations. They will say, If there are Christmas celebrations, we should be entitled to our own celebrations funded and backed by the public authority. I do not think we should go down that path. Perhaps the Minister thinks that that is a path down which we want to go, but sooner or later one has to draw a line.

John Mason: I am restraining myself from intervening too often, but on that point, is the picture that the hon. Gentleman paints not a little bit away from reality? The reality in Glasgow, with which I am familiarI believe it is also the case in other cities and boroughsis that councils support the celebration of religious and other cultural events across the spectrum. They might support a larger group a little bit more, but my experience of local authorities is that they are very good at supporting all sorts of groups in the community. Is that not the way we want to go?

Evan Harris: Local authorities do not need legislation of this kind to do that. The provisions might mean that they have a dutynot discretionto do such things. Every religious group might say, We have a right to be funded to the same extent as every other religion is funded or supported by youby which I mean the public authority. There is no bar to that expectation in the drafting of the provision. I am all in favour of there being discretion, but the duty to have regard to the need to provide equality of opportunity coupled with the fact that public authorities are already funding some religions to do certain things, will lead to more not less religion-specific provision. It will also lead to more divisiveness and more segregation in the delivery of public services. That is not something we should be looking towards.

John Mason: Again, I wonder about the gap between the theory and the reality. If, for example, a religious group is giving out soup to homeless people at night, it will give it to every single homeless person who is there. It would not know what someones religion was, if they had a religion or about any such issues. Surely there is a danger, if we go to the other extreme, of squeezing out all the religious groups that hand out soup, and the people who will suffer are the homeless people who will not get any more soup.

Evan Harris: There is nothing wrong with local authorities giving contracts to religious organisations. My concern is where religious organisations discriminate on the basis of religion or belief. An example is given in the explanatory notes to another part of the Bill. Public funding may be used for adoption agencies, which perform a critical public function. It is the Governments intention, apparently, to allow adoption agencies to discriminate against people of the wrong religion in deciding who can apply to adopt a baby.
Perhaps Catholic adoption agencies are a particular attraction to prospective Catholic parents. There is nothing wrong with thatindeed, they could market more among those peoplebut to say, No Protestants can access services through us seems to me to be wrong in a public function, whether or not it is funded by the public. It means that a Muslim organisation or Muslim individuals will say, Wow, theres a Catholic adoption agency and we cant apply there. Equality of opportunity means by definition that we should have our own adoption agency, which caters only for us. Then the Jews might say, Well, we cant apply to the Catholic or the Muslim adoption agency. We want our own and then Protestants will want their own. The only group that would not want their ownalthough they might be forced to have oneis the atheists.
A balkanisation of services would result, founded on the basis that discrimination is allowed, for no good reason. I do not think the parents religion matters, in the end, in terms of whether babies will be well placed with them. I agree that Catholic adoption agencies might encourage Catholic parents to come forward. They might be good at recruiting parents, who are desperately needed; I do not have a problem with that. But to have a blanket ban on people of other religions accessing a public service is unjustified. Coupling that with an equality duty will result in the same thing with every single religious organisation, and only religious organisations. An adoption agency cannot say, No blacks, so that balkanisation would never occur in race; it occurs only in religion. The cat is already out of the bag, unless we close it in this clause. I have made that point enough times, so I promise not to return to it.
In the paper provided to hon. Members, the EHRC makes the point that a possible benefit of the public sector equality duty in respect of religion and belief is improved access to health or other public services
by enhancing responsiveness to religious sensitivities and practices, such as greater consideration of the impact of Ramadan observance in the context of providing health care, support for students and even in terms of adjusting scheduled timetables.
I have not argued that there is no merit in the proposal whatever; this is just a series of risk-benefit analyses. However, many of the examples given by the EHRC are clearly covered by subsection (3)(a), for example. If my amendment is not made, and an amendment were later made to remove subsection (3)(b), leaving in subsections (1)(b) and (3)(a), any disadvantage suffered by people who cannot access services could be covered. I would be prepared to see it covered; I cannot speak for Lord Lester, who I suspect feels more strongly about the public sector duty as it applies to religion. If a clear disadvantage is suffered by people who share a relevant protected characteristic, the provision can be left in, but that is different from a cited need. That is why many of the EHRCs examples can be addressed without the need for subsection (3)(b), although I accept that some of them are arguable.
Many of the EHRCs examples are examples of unjustifiable indirect discrimination. If one criterion for accessing health services in a hospital is wearing a very immodest gownboth women and men are made to wear them, but in this case, it is of concern to Muslim womenand people cannot comply with that criterion because of their religious belief, that is unjustifiable indirect discrimination. Hospitals should providemany do, and they all ought toappropriate hospital gowns that do not create such discrimination. I do not believe that it is a question of need as laid out here.
Other examples given by the EHRC involve improving police practice and attitudes across the public sector towards particular religious groups. It is not my view that a public sector equality duty is needed to achieve that, where it is required. That has been happening for a long time, and I do not think that the public sector duty should hinge on whether that is done.
The EHRC gives the example of the provision of women-only gyms, but the Bill already permits women-only gyms or swimming periods to be provided. A public sector equality duty is not required to allow that for, for example, Muslim women. Interestingly, the EHRC cites the Southall Black Sisters in defence of extending the public sector equality duty to religion and belief, but, in fact, that group has written to the discrimination law review consultation strongly opposing extension of the public sector equality duty to religion and belief.
I quote from the organisation Women Against Fundamentalism, which
is opposed to the extension of the single equality duty to religion and belief. We strongly feel that an extension will not promote equality but will instead reinforce inequality...We would remind the Equalities Office, that the right to manifest ones religion, unlike the race and gender equality duties, cannot be treated as an absolute duty.
It says duty, but it is a right, of course. Women Against Fundamentalism goes on to state that there is
an urgent need to address the complications that arise when religious discrimination is treated unproblematically as an equality strand. At national and local levels, religious identity politics is being contested by women and others within minority communities, as well as in the wider society in their struggle to be free from racism, gender violence or other oppressive restrictions whose persistence are themselves an indicator of inequality.
That group has concerns, and I know that the Minister will be aware of other organisations that share them.
Southall Black Sisters wrote to say similar things about its opposition to the provision relating to religion. It stated in its letter of 8 October to the discrimination law review team:
Our concerns about extending the equality duty to religion and belief stem directly from our day to day casework experience and our struggle to maintain a service for all black and minority women in a context where the politicisation of religion (a deeply reactionary and discriminatory development) worldwide, has resulted in the shrinking of secular spacesa necessary precondition in our struggle for womens human rights.
The letter goes on to explain the background of Southall Black Sisters, which is a respectable organisation. That is why I am not surprised that the EHRC should seek to cite it in support, but, in fact, the group is clear that it is opposed to the duty. It states:
By seeking to include religion in the promotion of equality, our concern is that the state will be signalling the view that the promotion of equality involves supporting organisations of a particular faith or belief even if they have beliefs that are profoundly exclusionary and discriminatory. By extending the equality duty to cover religion, the state will be implicated in promoting indirect discrimination and inequality and indeed in human rights violations, leading to a watering down of human rights standards where minority communities are concerned.
I do not say that the group is saying that that applies to all religious organisations or, for example, to Muslim organisations in general, but it is clear that its experience from the work that it does shows that there is a problem. It does not want what it sees as the subjugation of women by some religious organisations to be helped by the state through a public sector duty.
I have raised with the EHRC, as has Lord Lester, a concern about this matter of public policy: religious organisations will say that equality of opportunity means that their need to have creationism taught in schools, or not to have casinos in their area will be supported by an equality duty. For some reason, in its response, the EHRC seems to feel that the concern is about legislationthat there would be a positive duty in legislation to promote equality of opportunity. We are talking about public policy, not legislation.
Finally, I return to the main concern. We must decide, when considering how to proceed carefully and get the balance right, whether we will be a bulwark to the increasing trend, and the fear of an increasing trend, for public services, whether adoption, counselling or hospice services, to be delivered on the basis of one religious group receiving from one provider, and another religious group receiving from another. That trend goes against the rest of the public sector equality duty, which talks about fostering
good relations between persons who share a relevant protected characteristic and persons who do not share it.
It is a matter of concern that an attempt to promote equality might lead to greater conflict.
We must be certain that the promotion of equality will not be used by public authorities to suppress free speech. Some people feel very strongly about other people, and that might be because of those other peoples religious views or behaviour. The people who feel strongly are often, though not exclusively, of their own religious view. There is a concern that public authorities will feel pressured to restrict freedom of speech, to meet peoples need not to be attackedshort of unlawful incitement to hatred and violations of the Public Order Act 1986and will say, We are not going to allow you to hold your meeting in our hall.
I should like an assurance from the Minister that, although we might not agree with strongly held religious views being expressed against the followers of other religions, the public sector duty will not be used by public authorities to justify not allowing, for example, a fiery Baptist preacher to preach in strong terms to his followers against followers of other religions, short of breaching laws on incitement to religious hatred. In promoting community cohesion, there is a natural concern to prevent such activity, but we must recognise that the protection of free speech trumps much of that concern when the speech itself is not unlawful. I should be grateful for clarification and support from the Minister on those grounds.
Amendment 297 is about exactly that need to protect free speech when public authorities perform their duties. It is only a probing amendment, but I want reassurance from the Minister that the duty will not be used to undermine the free speech of individuals, whether they are religious or not.

John Mason: I appreciate the opportunity to speak this afternoon, Lady Winterton. I want to start by touching on the final remarks of the hon. Member for Oxford, West and Abingdon, who painted perhaps a slightly extreme picture of where we are, or where we are going. He used the word balance, which was encouraging; we are looking for some kind of balance and compromise. We do not want one group to be dominant over others.
I was interested in the hon. Gentlemans view that society might be moving more towards religious organisations running things. I had felt that things were the other way round. In Scotland, virtually all the schools were started by Churches and have gradually come to be run by the state and to become more secular. The trend that I and, I think, other religious people perceive is away from religion and towards secularism.
I am happy to welcome the clause and its intentions. The idea of a public sector equality duty is good, and I welcome it on the whole. In the Equality Act 2006 and the 2007 sexual orientation regulations, the Government decided against extending the public duty on the grounds of religion and sexual orientation because of the controversy that it could have caused. The Government wanted to take their time. The question remains: have we got the right balance?
Clearly, some want the duty to do more, and others want it to do less. The BBC and Channel 4, as publicly funded broadcasters, say that they are worried that the duty goes too far and that it might affect their editorial independence. I assume that the Conservative amendments in the next group would address that. The TUC, however, says that the duty does not go far enough and that it should apply to charities. Of course, much of the detail on how the duty will apply is yet to be thrashed out in secondary legislation, which we will come to when we debate clauses 145 to 149.
The Government have taken on a monumental task in trying to square this circle. Amendment 49 goes to the heart of what I have been trying to achieve throughout the Committee, which is a recognition of the need for balance between the various competing rights and the fostering of good relations and mutual respect between people of differing views, rather than one side being given a stick with which to beat the other. I hope that I have found some support for that.
I am also grateful that, although the Minister has not accepted any of my amendments, she has sought to offer reassurance to religious groups that religion does not come bottom of the equality pile. My amendment would make that clear. In fact, it would make it clear that no strand comes bottom of the pile, but that public authorities promoting equality must balance all strands.
Subsection (1)(c) mentions the need to foster good relations. I must admit that that is one of the phrases in the clause about which I am most enthusiastic. My amendment would make it clear that fostering good relations involves a
balance between the rights of persons who share a
particular
protected characteristic and the rights of persons who share a different...protected characteristic.
Clearly, as is now obvious to all, a clash is most likely to arise between rights based on religion and belief and rights based on sexual orientation. Some people feel that one strand dominates another. We have previously talked about the case of Lillian Ladele, the Christian registrar. I understand that since last week, one of Miss Ladeles colleagues has gone public about the fact that she too has been disciplined and threatened with dismissal by Islington over her conscientious objection to registering same-sex civil partnerships. Supporters and opponents of Miss Ladele both feel that the Employment Appeal Tribunal ruling on her case, which is being appealed, means that every time religion conflicts with sexual orientation, the latter wins. Adam Fuge, a principal at Matthew Arnold & Baldwin solicitors, wrote in Personnel Today magazine in May that the Ladele case means that there is now
a pecking order of competing equalities
in which religion often loses out.

Evan Harris: Will the hon. Gentleman not accept that that is a statement that the right not to be discriminated against in the receipt of a public serviceon whatever ground, because a religious person could want to racially discriminatealways trumps the right of someone who is delivering the public service to manifest their religious belief in a discriminatory way? That is nothing to do with religion versus sexual orientation; it is to do with the right not to be discriminated against versus the right to discriminate while delivering a public service.

John Mason: I would word it slightly differently. I suggest that the right not to be discriminated against applies to both the gay couple and the employee. The gay couple have a right to have their relationship registered and the employee has a right not to be discriminated against by their employer. That is what I am trying to raise in the Committee. Ultimately, it is for Parliament to decide how to bring together those two apparently conflicting examples of being discriminated against.

Evan Harris: Let us say that there was a registrar with British National party sympathies. Let us suppose that, because of their strongly held beliefs, they did not want to register gay couples. Would it be right for the council to say, All right, well schedule you something else, or would the council be right to say, No. Whatever your views, you have to do your job?

John Mason: At the beginning, we discussed the link between sexual orientation and sexual behaviour, and the link between religious belief and religious behaviour. That is what I am discussing now. Clearly, I am not trying to deal with the separate question of what happens when someone is in the BNP and a racist.

Mark Harper: Looking at the detail of the hon. Gentlemans proposals, and thinking back to a debate on a previous clause, I remember that he raised the issue of how, in such a circumstance, the two different sidesemployee and managementbehave and how they deal with and resolve the clashes of rights. Does he think that a proposal such as his amendment 49 would effectively get those public bodies to think a little harder about how they manage those clashes of rights? Perhaps they would still have the same outcome, but they might get there a little more sensitively and have at least made a better effort at balancing those competing rights.

John Mason: I appreciate that intervention, because the hon. Gentleman put it very wellgetting people to think a bit harder. That is why I was keen to be part of the Committee and to see the provision reflected in the legislation and put into effect by the public bodies concerned.
The lawyer to whom I referred says that although equality laws are supposed to protect religious believers from discrimination, case law has tended to place religion at a disadvantage compared with other protected characteristics. Michael Rubenstein, publisher of Equal Opportunities Review and by no means sympathetic to Miss Ladeles position, has said that he, too, believes that the Employment Appeal Tribunal ruling is wrong.
The view seems to be that since the law requires public authorities to provide civil partnerships, a registrar who does not feel able to do that should get another job. However, we do not take that view with teachers. Schools are required to provide religious education and, as was mentioned the other day, to provide a daily act of collective worship that is
wholly or mainly of a broadly Christian character.
That is a legal requirement placed on a public authority, just as the Civil Partnership Act 2004 is a legal requirement placed on a public authority. Does that mean that all teachers must take part in fulfilling that duty? No.
Sections 59 and 60 of the School Standards and Framework Act 1998 specifically allow a teacher to opt out of providing religious education or participating in collective worship, which is quite right. That is the pluralistic society that I am looking for. The law creates space for atheists and for people of differing religious convictions not to be compelled to take part in promoting things to which they conscientiously object. Why can we not do the same for issues of religious conscience in other settings?

Evan Harris: That is all backwards. The problem with collective worship and sections 58 to 60 of the School Standards and Framework Act is that they create religious discrimination. My position and that of the Liberal Democrats is consistent: there should not be that religious discrimination. If we did not have the discrimination of forcing people in school, potentially, to deliver a prayer that they did not want to, we would not have to have the exemption. The hon. Gentleman must remember that section 60 of the School Standards and Framework Act allows a state school to sack a maths teacher for not believing in God, if it is a reserved post. I do not think that he can defend that as a paradigm of fairness in religious terms.

John Mason: On that point, I am perhaps more in agreement with the hon. Gentleman than I usually am. On whether there should be religious worship in schools and his reference to the maths teacher and so on, I broadly agree with him. My point is that in other parts of legislation there is scope for the individual to have a little freedom of manoeuvrethat is what I am asking for here. I am not seeking a get out of jail free card, which would make it impossible for a local authority to fulfil its functions, but simply some reasonable accommodation for individuals. The opt-out works well for teachers, and pupils do not suffer. Why could the same not be true for registrars?
My amendment would focus the minds of decision makers in local authorities on the need for such give and take in all their functions. Even if the public sector duty does not apply specifically to employment, it would affect the culture, which the Minister is very keen on doing through the Bill. There is a danger that, without my amendment, the new duty could be used against religion, pushing it further out of the public square. Leaving sexual orientation aside, there are lots of stories about how existing equality requirements are used to remove expressions of religious faith from the public square.
Oxford city council was criticised in November last year for deciding to hold a winter light festival in the city instead of traditional Christmas celebrations. Interestingly, the strongest criticism of the council came from non-Christian religious leaders.

Evan Harris: The hon. Gentleman mentions my constituency, so I rise to support the actions of the Oxford Inspires group. The event was not a substitute for Christmas light celebrations at all. That was a typical myth produced by one of the newspapers, and it has been denied. Everyone in Oxford who is aware of the facts accepts that that was not so. The allegations about Winterval are exactly the sort of thing that we are likely to see if this public sector equality duty is red in tooth and claw regarding religion or belief. We should downplay that aspect in respect of the public functions so that public authorities can get on with delivering what is required, rather than have scare stories about Christmas lights being taken down.

John Mason: I am happy to accept that the hon. Gentlemans knowledge of the detailed case is greater than mine. All we are trying to say is that there is a tradition of Christmas and Easterand Muslim festivals as wellwhich we are all happy to celebrate or, at the very least, happy to allow other people to celebrate. We do not have to water everything down to a minimalist secular position.
People over-interpret concepts of religious equality as requiring the eradication of religion, especially the traditional religion, which in our case is Christianity. There needs to be a rebalancing of how public authorities handle the different equality streams. Good relations between strands are not possible where religion is ignored. I feel, as do others, that something needs to be done, and where better to start than in this Bill?
Amendment 249 would leave religion out of the public sector duty altogether. If the proposal had been to leave out religion and sexual orientation, that would have had the virtue of avoiding the main clash of rights that I am concerned about. However, leaving out only religion, yet again, relegates religious people. The explanatory wording to the amendment talks about removing the duty
on public authorities to have regard to promoting equality of opportunity between religious people,
as if it is just about stopping inter-religious strife, but it is also talking about potential strife between religious people and others. I hope that the Minister will not accept the amendment.

Vera Baird: Let me speak to Amendment 249, which would provide that public authorities would not be required to have due regard to the need to advance equality of opportunity between people who share a religion or belief, and those who do not share such a religion or belief.
The duty is about getting public authorities to think about whether there is any evidence of individuals suffering disadvantage, and then to think about whether there is anything that they can or should do to tackle that. My hon. Friend the Member for Stroud put his finger on that at the outset. He was right that that is the primary aim.
We have approached this from the position of finding out whether there is any evidence that some people with religious beliefs are suffering disadvantage or have different needs. That is a narrow question, and we think that the answer is yes. Let us take different needs first. Because of their religious beliefs, some members of religious groups might have different needs when it comes to accessing or engaging with public services. For instance, to cite a tried and tested example that nevertheless makes the point, some Muslim women might not feel able to receive medical care, particularly gynaecological care, from a member of the opposite sex. For a primary care trust or a hospital trust not to deliver that service to them would not be discrimination, and would not therefore be dealt with under paragraphs (a) or (c). This is about equality of opportunity. Given that there are poorer ante-natal, post-natal and infant health outcomes for Muslim women now than for anyone else, would one not want the local authority or PCT to acknowledge that need and to ensure that it was met?

Evan Harris: Will the Solicitor-General give way?

Vera Baird: No, not all. How long have we listened?
There is a similar argument about opening swimming pools to women-only groupsMuslim women, for instance, who would not be happy swimming in scanty swimwear with men around. We would not want a special swimming pool demanded by the Muslims, and then one for the Jews, one for the Catholics and one for the British Humanist Association. Instead, a special time could be designated when women could swim on their own, as often happens now. This requires local authorities, primary care trusts and all public authorities to think about the impact of their policies on people who have religious beliefs. It certainly does not mean separate services on demand, and it is fatuous to suggest that it will lead to balkanisation. Where there is evidence of need, we must ensure that public services are responsive to that need for the benefit of people who use the services. It will not lead to balkanisation, let alone the abolition of Christmas.
The hon. Member for Oxford, West and Abingdon wanted to know whether need involved an objective element. This is very straightforward. The duty is on the public authority, which will have to decide whether there is a need to be met and exercise due regard in making that decision. It will have to behave and determine the issue in an appropriate and proportionate way. Evidence will be required; it will not be possible for some fatuous or supposed religious organisation to suggest that it, too, should have something that other people have without any evidence at all. The hon. Gentleman will say that there must be equal provision for every strand of religion. He says it again and againand again and again and again. That simply is not the case. We are talking about need. This is not a difficult provision to understand, and I do not know why it causes such a lot of anxiety. However, it doesand has done so about eight times now.
Another aspect to advancing equality opportunity is that of encouraging participation in public life. We want local authorities to think about how they can encourage Muslim women. I think that nine Muslim women are councillors in England and Wales. Local authorities would be encouraged to use the provision to ensure that they brought in more people. If we accepted amendment 249, we would return to a hierarchy of inequality that would bleed into the other limbs. For instance, if the current unfair patchwork of coverage survives, Jews and Sikhs would still be covered under the race strand, whereas Christians, Muslims and humanists would not.
There seems to be a sense among Opposition Members that gay people and religious people hate each other relentlessly all the time, that that happens throughout life, and that every day is full of perpetuated hatred between those groups. That is a wholly unrealistic position. We took a lot of evidence from witnesses from Stonewall, and the hon. Gentleman tried to prod them into saying that there were deficiencies in the Bill and that they were insufficiently protected as gay people. They repudiated that entirely and try as he mightseveral timesthey simply would not have it. Stonewalls Living Together report makes it clear that about 84 per cent. of people of faith do not think that homosexuality is morally unacceptable in all circumstances. Let us be more realistic with our submissions and they might be a bit shorter.
Amendment 49 would make explicit the concept of due regard by involving an additional element of ensuring a balance. We think that due regard, which is central to the operation of the duty, is better. It requires the public authority to take into account all relevant factors and arrive at a proportionate decision. Instead of requiring all that, the amendment would turn the process into a simple balancing exercise that we would find unwelcome. Inherent in the concept of advancing good relations is the need to ensure that one part of the community is not unfairly favoured over another. One could not describe a public authority as fostering good relations if it had ridden roughshod in any way over one section of the community and unjustly prioritised another. There is already a concept of balance in the duty, and the legislation does not need this gloss. That would make it a less sophisticated process than the one that we feel is appropriate for all groups. We do not favour the amendment, although we understand why it was tabled.
Amendment 297 would require public authorities not to inhibit free expression when complying with a duty. Subsection (5) is clear about where the duty sits in relation to the law. It does not trump or override the law, but operates within its limits. A public authority will have to obey the law and ensure that it does not infringe the lawful rights of anyone, whether intentionally or otherwise. The Human Rights Act 1998 enshrined the right to freedom of expression in law. Although it is a qualified right, people are free to think and say what they like within the boundaries of the law.
There are powerful reasons why we need these provisions in the Bill. They will form the leverage that we use to transform the culture, and it is a pity that that is not evident to other Committee members.

Evan Harris: I am grateful for the Ministers words about amendment 297, in which she gave a clear defence of free speech and explained the duty for public authorities to protect it. That should send a message to universities in particular that no platform policies are acceptable. They should not infringe the right of lawful free speech, even for unpleasant organisations and individuals. That is especially true on campus when whom is deemed to be unacceptable is determined by some kangaroo court on the basis of who the National Union of Students or the local student union thinks should not be allowed to speak. Of course people are allowed to demonstrate. However, public authorities should not be involved in preventing people from speaking. They should allow people to speak, even if the police then listen carefully to what they say.
On amendment 249, I regret that I could not persuade the Minister to address the distinction, if there is one, between disadvantages in subsection (3)(a) and needs in subsection (3)(b). I accept her example about the importance of access to health services for hard-to-reach groups, some of which may share the protected characteristic of religion or might have poor access because of the manifestation of their religious beliefs. That puts them at a disadvantage and would automatically enable subsection (3)(a) to apply.
Amendment 249 would take out subsection (1)(b), which is the stem for the whole of subsection (3). I accept that it goes wider than just the question of needs. In respect of what a need is when it is not an established disadvantage, the Minister relied on the fact that local authorities and public authorities would have to determine whether there was a need that they ought to meet. As I said, my concern is about the expectation that needs will automatically be met. That causes a reciprocal expectation by public authorities that such needs, however unwarranted or however much they cause inefficiencyor what I have called balkanisationought to be met.
The assertion that Opposition Memberswhether me or the hon. Member for Glasgow, Eastthink that there is widespread conflict between gay people and religious people is misplaced and creates a straw man. However, it is true that the nexus between religion and sexual orientation is being tested in case law. Another issue is the ability of employers to restrict the manifestation of religious belief in employment, irrespective of issues of sexual orientation. That is where the case law is. It is not unreasonable when debating the Bill to concentrate on where the problems are and not on where there is broad agreement.
Amendment 249 has not found favour. It might be too wide, so perhaps it would be more appropriate to table a narrower amendment at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 143 ordered to stand part of the Bill.

Schedule 18

Public sector equality duty: exceptions

Lynne Featherstone: I beg to move amendment 281, in schedule 18, page 215, line 25, leave out paragraph 1.

To remove the exception from the age public sector equality duty so far as relating to education and public services for young people, such as childrens homes.
The amendment would remove the exception on age from the public sector equality duty so far as it relates to education and public services for young people, such as schools and childrens homes. We briefly discussed such issues when we considered an earlier provision. I expect that colleagues have received the briefing from Young Equals, but a survey carried out by the Department for Children, Schools and Families shows that 43 per cent. of 18-year-olds reported unfair treatment on the basis of their age. Three in 10 children under 11 felt that they had experienced age discrimination, and nearly two thirds of older teenagers said the same. Unfair treatment on the grounds of age was by far the single biggest example of discrimination, so I hope that I can use the amendment to probe the Minister about why schools and childrens homes have been exempted from the public sector equality duty.
I would have thought that under-18s have the same need, if not more, regarding the elimination of unlawful discrimination, the advancement of equality of opportunity, and the fostering of good relations. The way in which are treated at school colours the rest of our lives. If we are disrespected because of our age, we will grow up with a certain view. If we are treated with respect, that ethos has the possibility of staying with us throughout school life. That goes for the numerous relationships formed at an incredibly important time in a young persons life, such as between children of different ages and between children and teachers.
Schools provide an amazing opportunity to work on intergenerational projects and to foster good relations between different ages, and between old and young. One of the most powerful events at my daughters school was when the older children were able to go into the class of the younger children and be their teachers for the day. Being able to form such relationships is crucial at that age, and respect for all ages is really important.
I was even more confused about the exemption of childrens homes from the public sector equality duty under schedule 18. One of the great problems facing children in care is being shifted around from home to home because they have reached the age limitation of the homes. That could affect 10 to 14-year-olds or 14 to 18-year-olds. The children are artificially moved on and that creates instability. It is a requirement of Ofsted to register, specifying by age the categories of children as a condition of the registration. That means that other children are precluded, which flies in the face of other legislation that favours keeping siblings together. If there are two siblings, one in the 10 to 14 age group, and the other younger or older, it will be impossible to keep them together if the Bill is enacted with such an exemption.
At present, a childrens home could get into trouble by taking in siblings of a younger age than that specified. Moreover, older children seem to have less favourable treatment in the commissioning of child care. Commissioners are likely to make sure that an appropriate placement is found and to take extra care for a younger child because sometimes, when cost is a dominant factor in the decision-making process, the needs of an older child are rated as less important.
As for fostering good relations between people of all ages, I cannot understand why the Government do not believe that the exemption will be of particular benefit, because it relates to something that is absolutely essential in the provision of important care. Research shows the particular importance for children in residential homes of relationships with not only the staff, but other children and young people. When the ages are more varied, children benefit from exposure to older youngsters acting as role models. The current arbitrary age restrictions prevent what I would regard as completely natural and beneficial age integration.
I will be interested to hear the Ministers response. I do not know whether the provision existed in legislation before I was in politics, but if it has something to do with removing the bad influence of older children so that younger children will not be exposed to what teenagers and older children get into, I would think that things should be the other way around. There is more of an onus on young people to behave better when they are given support and looked up to by even younger ones. If they are off in a group on their own, they might be encouraged to get into all sorts of things when they do not have the responsibility that comes from being looked up to by siblings or younger children.
Perhaps the Government are saying through the exemption that such young people are not supervised and cannot be trusted to live in a situation similar to that of a normal family, which can include children of all ages. There is no exemption for families relating to an age range among siblings. On that basis, I ask the Minister to respond to those issues. Why have the Government sought to exempt the provision of education to pupils in schools, and of benefits, facilities and services to pupils in schools and childrens homes? I look forward to her response.

Vera Baird: Let me make it clear that the equality duty will require the vast majority of public authorities to think about how they can advance equality for people of all ages, including children, when designing policies and delivering services. For instance, that might involve ensuring that swimming pools and leisure centres are accessible to children, or considering whether bus services cater adequately for children. Although the prohibition on age discrimination in the provision of goods and services does not cover under-18s, children will still benefit from the proactive duty in clause 143.
However, we do not think that clause 143, in so far as it relates to age, should apply to the exercise of functions relating to education and services to pupils in schools, and accommodation and services in childrens homes. Schools are based on the premise that children need to be treated differently according to their age, ability and aptitude. Advancing equality of opportunity for children of different ages makes much less sense than advancing equality of opportunity for children of different races or sexual orientations, for boys and girls, or for disabled children. That is where the focus should be.
The hon. Lady gave an example involving childrens homes and siblings being split so that a 13-year-old could not go into the childrens home that started at age 14 and a 14-year-old could not stay in a childrens home with a 13-year-old sibling. However, her example makes exactly the opposite point. The arbitrary right to insist on placing a child of inappropriate age in a facility that provides for children of a different age, on the grounds that age inequality provisions apply, is exactly what we want to avoid. We want the child to be put with its sibling if it is good for the child to be with its sibling and the environment is acceptable, and not to be if it is not. That would be a decision taken on the basis of the welfare of the children, not an arbitrary test of age discrimination or advancing equality of opportunity for children of different ages. With great respect, the hon. Lady damages her own argument with that particular example.
Concern has been expressed by the hon. Lady and others that not having an age-related duty for under-18s in schools and childrens homes means that nothing will be done to tackle some older childrens problems accessing child protection services or being safeguarded, but those are functions of a local authority, and the duty applies to local authorities. The examples that I have heard are usually found to relate to functions of local authorities or other bodies, which are all covered. All that the exception covers is the actual environment of the care home or school. I know of no concrete examples so far of any mischief that has arisen from the duty not being in place, so we do not think that we will put it in placein fact, we are quite sure that we will not.

Lynne Featherstone: I thank the Minister for her response. I think that we have a basic disagreement about the benefits of promoting opportunities for different ages and that we will not see eye to eye. I understand some of her rationale, and I will reflect on what she said. For the time being, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Evan Harris: I beg to move amendment 298, in schedule 18, page 215, line 41, leave out
, race or religion or belief
and insert , nationality.
The amendment probes why the language in this part of the schedule is as it is, even if it is historical. The provision deals with exercising of immigration and nationality functions. Clause 143 will have effect as if subsection (1)(b), which I will not discuss further, did not apply to the protected characteristics of age, race, religion or belief.

Sitting suspended for a Division in the House.

On resuming

Evan Harris: I want to probe this part of schedule 2. The amendment has two functions. The first function is to explore why religion and belief are included in the exemption. Perhaps we might disagree for the same reason that we disagreed on the direct discrimination exemption. The Committee will remember that we had a debate about why one needs to keep out religious extremists. One cannot justify doing so simply on the basis of indirect discrimination, given the views that they express. I do not know whether the inclusion of religion and belief mirrors that, or whether there is another reason, such as rules to do with the immigration of imams and so on. It does not seem logical just to exempt religion and belief, since the immigration authorities would have to have a good reason and justification for taking action against someone whose immigration status is threatened because of a particular manifestation of their religion or belief.
The second function is to ask why the provision applies broadly to race, which includes colour, nationality and ethnic origins, and why it does not simply refer to nationality. One can understand why nationality needs to be exempted from a positive duty, since it is exempted, understandably so, from the discrimination legislation. It seems strange that there should not be a positive duty to ensure that immigration services are provided equally on the grounds of colour, given that people of colourethnic minoritiesmay face difficulties in dealing with the immigration service that other people with immigration issues who are white Australians or Americans are not as likely to face. The onus is on the immigration service to have regard to its need to deal with that, so it would be unfortunate if all references to race were taken out of a positive duty in respect of immigration. I would be grateful for the Ministers clarification of those two separate points.

Vera Baird: We do not believe that the amendment is helpful. Extending the duty to have due regard to the need to advance equality of opportunity on the grounds of race, religion or belief may not always be compatible with the UK Border Agencys functions to provide effective immigration control that is consistent with Government policy and with public safety.
The Bill will permit the UKBA to differentiate between people on the grounds of ethnic or national origin, or of religion or belief in particular circumstances. Such circumstances do not occur frequently, but, when they do, it might not always be possible to say that due regard had been taken to the need to advance equality of opportunity. We would not want to open up a new avenue of costly and time-consuming challenges against the Government.
For example, the UKBA has a policy of excluding from the country individuals whose so-called religious beliefs are so extreme that it would not be in the public interest for them to enter or remain. We would not want to open ourselves up to a hopeless challenge from a representative of an extremist group who suggested that, by excluding him, the UKBA was in breach of its obligation to have due regard to the need to advance equality of opportunity. None the less, it is important to make it absolutely clear that immigration policies will continue to respect the fundamental religious freedoms that are protected by the Human Rights Act.
The times when the UKBA would want to differentiate on grounds of ethnic or national origin are even more rare, and there has been no ministerial authorisation under section 19D of the Race Relations Act 1976 that would permit differential treatment on those grounds since 2002, but we cannot rule out a crisis abroad occurring at some stage in the future, when we may need to bring certain groups to this country for protection but not others of the same nationality. In such rare emergency situations, it may not be possible to have due regard to the need to advance equality of opportunity.
The exception is not designed to be a blank cheque to permit the immigration authorities to evade their responsibilities. It is there so that, when necessary, they can exercise their essential functions in these respects without the possibility of a challenge, and to ensure that the important new equality duty that we are creating is not misused and brought into disrepute by those who seek to frustrate the immigration system.

Diane Abbott: I listened with interest to the Solicitor-General. I do not want to detain the Committee, but I am curious about why we are allowing skin colour, which is part of the race strand, to be a means by which the immigration service may discriminate. The Solicitor-General has not had my experience, but almost every black professional has experience of being singled out by immigration authorities, whether in this country or elsewhere, purely and solely on the grounds of skin colour. When they discover that someone has a British passport or even that they are an elected official, they back off[Interruption.] Yes, it has happened to me. Black people are singled out because of skin colour. I listened to the Solicitor-General, but she did not explain why the immigration authorities need to be able to discriminate against people on the basis of their skin colour. It causes considerable bad feeling among people who otherwise do not interact with immigration authorities.

Evan Harris: The hon. Lady makes my only residual point more eloquently from her direct experience than I could have done. I do not know whether the Minister has an answer, but I am not minded to press the amendment. If she does not rise now to respond, will she write to me about it?

Vera Baird: I am happy to rise. Colour is part of the definition of race. That is all. We do not want to use the power in connection with colourfar from it. All the examples that have been given are appalling and should not occur. I have seen them at airports, but race includes all those characteristics, and there is no fundamental point in seeking to slice out any aspect of the definition. The race exemption has not been used since 2002, and it has not been authorised. It is likely to be used, as I said, when we need in an emergency to take in one group of people and leave out another.
I shall not satisfy the hon. Gentleman or my hon. Friend that we can solve the problem with the Bill, but colour is included because it is a component of race and not because there is any intention of the UK Border Agency discriminating on that basis.

Evan Harris: I do not want to prolong the matter, but the point that the hon. Lady and I are making is that, if there is a way of taking colour out of the exemption, that would put a positive duty on the immigration services to undertake even more training to prevent the incidents that have happened to my constituents who are from ethnic minorities but that do not happen even to overseas nationals who are white. Obviously, there is no point in pursuing the debate now, and we will reflect on what the Solicitor-General said. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Vera Baird: I beg to move amendment 282, in schedule 18, page 216, line 13, at end insert

Judicial functions, etc.
(1) Section 143 does not apply to the exercise of
(a) a judicial function;
(b) a function exercised on behalf of, or on the instructions of, a person exercising a judicial function.
(2) The references to a judicial function include a reference to a judicial function conferred on a person other than a court or tribunal..

This amendment would provide that the duties imposed by clause 143 on public authorities, as well as on other persons exercising public functions, will not apply to the exercise of judicial functions (or other functions exercised in a judicial context).

Ann Winterton: With this it will be convenient to discuss Government amendments 283 to 285.

Vera Baird: The amendments, essentially, will make minor corrections.

Mark Harper: I do not want to take too much of the Committees time, but I have a few questions. Amendment 282 will insert an exemption for judicial functions. Will the Solicitor-General explain why those functions will be removed en bloc?
What is the logic behind amendment 284, which will remove the exemption for those who take decisions about prosecutionpresumably the Director of Public Prosecutions, the Attorney-General, the Solicitor-General and bodies such as Her Majestys Revenue and Customsso they will have to make decisions bearing in mind the public sector equality duty in clause 143. That seems to go in one direction for decisions about prosecutions; but at the same time, there will be a wider exemption for judicial functions and two issues connected with judicial decision making seem to go in opposite directions.
Amendment 282 refers to judicial functions conferred on a person other than a court or tribunal. I just wanted to check that that applied to Ministers when they are making quasi-judicial decisions in their rolefor example, when the Secretary of State for Communities and Local Government makes a decision about planning cases, or when other Ministers make similar decisions in that quasi-judicial capacity.
The explanatory notes refer to the UK Border Agency:
The UK Border Authority, when taking immigration-related decisions, will not need to give due regard to the need to advance equality of opportunity for people of different races, religions beliefs or age.
However, the agency does have to give due regard
to the need to advance equality of opportunity for disabled people...for people of all sexual orientations and transsexual people.
When the UK Border Agency makes a decision, that decision could be appealed at the Asylum and Immigration Tribunal, which is carrying out a function of a judicial nature. Presumably, the AIT is then exempted from the need to apply the public sector equality duty, which is a different test to the one that is being applied by the UK Border Agency. So the measure does not seem to be wholly consistent and could lead to one agency making decisions based on a certain set of criteria, but when it reaches the judicial part of the process, it is effectively exempted from that duty. That could lead to those organisations making different decisions purely based on whether or not the public sector equality duty is applied. It is not a major issue, but there is a potential for conflict. Perhaps the Minister could take us through the logic behind the reason for amendments 282 and 284, because they seem to be going in opposite directions, and address the other two issues that I have raised.

Vera Baird: The measure does not apply to Ministers. I certainly did not have Ministers in mind. We were thinking about people, such as planning inspectors, who exercise judicial functions but who are not judges as such. It has never been our policy intent to have judicial functions in the Bill.

Tim Boswell: I am sorry that I had to leave the Committee for a moment. Just to be clear, is the Solicitor-General saying that Ministers never exercise quasi-judicial functions, that they might do or that, if they do, they are not covered by this kind of provision?

Vera Baird: Ministers are covered when they make decisions on various kinds of development. I did not have it in mind that the exemption would cover Ministers, but we will write to all parties and clarify that point.

Mark Harper: I just want to be clear. Ministers are explicitly set out in schedule 19 as being subject to the public sector equality duty. The example that I gave was in the planning case. The Solicitor-General just confirmed that the exemption would apply to a planning inspector, but the planning inspector will make their report to the Secretary of State, who will then make a decision in a quasi-judicial capacity. As in my example of the UK Border Agency and the Asylum and Immigration Tribunal, different bodies will make decisions. The AIT will operate in a judicial capacity and the Minister in a quasi-judicial capacity, and they will have a different set of duties to the subordinate body. It just seems to be rather messy, and we could end up with some court cases. The Solicitor-General knows how controversial planning decisions can get, so it strikes me that it would be better to be very clear about this. If the planning inspector does not have to follow the public sector equality duty in quasi-judicial cases, neither should the Minister.

Vera Baird: That sounds like a sensible conclusion to draw from the argument. We will write to the parties on whether Ministers will be exempted when exercising that role. There will not necessarily be an incompatibility between the UK Border Agency, for example, or the police and the judicial functions that follow them. They are different kinds of agency. The UKBA makes a decision that is not part of the judicial function, and if there is an appeal, it goes to a judicial body. Likewise, the police make a decision about whether to charge somebody in a non-judicial way and the matter then goes to court. The judicial function is exempt from the Bill in a way that the police are not. That is not a real issue, but we will write about whether Ministers are quasi-judicial.
I think that the hon. Gentleman was making another substantive point about whether we will go in opposite directions by excluding judicial functions for all purposes and bringing in a prosecution function. We do not think that we are doing that, although it is an oversight that we have not dealt with the matter before. We now wish fully to exclude judicial functions from the duty for all purposes. That is about the exercise of actual judicial functions. The measure is not, for instance, about HM Courts Service, the Ministry of Justice or administrative support to the courts; it is about purely judicial functions. The courts will have to have regard to the equality duty even when carrying out the instructions of a judge, but the judge will not.
On amendment 284, the policy is that the prosecution functions of the Crown Prosecution Service and the Serious Fraud Office should be subject to the requirements of the equality duty in the same way as other functions. They are included in schedule 19, so their decisions to prosecute will be subject to the requirements of the duty. However, paragraph 3(3)(f) of schedule 18 will disapply the equality duty to organisations other than public authorities exercising public functions in respect of decisions on whether to institute criminal proceedings. For safetys sake, that will have caught any organisation not listed in schedule 19 that from time to time might exercise public functions in respect of decisions on whether to prosecute. We do not think that that is necessary, and we cannot think of any body like that anyway.

Mark Harper: If I am clear about the matter, amendment 282 on the wider exclusion of judicial functions will correct an oversight. Amendment 284 will effectively reapply the duty to those who make prosecuting decisions. Is that an oversight or is that changing something because somebody has thought again? Does the measure effectively mean that, in relation to the test already applied by pretty much all of those who make prosecution decisions about the likelihood of success, the public interest test that is already used will be widened to cover the public sector equality duty? I am thinking specifically about the area with which I am most familiar: the CPSs decision to make prosecuting decisions in cases of hate crime. When making decisions in those cases, will the CPS effectively set the bar lower because of the need to advance equality? I am thinking particularly of hate crimes against disabled people.

Vera Baird: The CPS already has that duty, of course, because it is already subject to the public sector duties that currently exist. The measure is not a change in policy towards the main prosecuting bodies. Paragraph 3(3)(f) of schedule 18 will disapply the equality duty for a community of people whom we now do not think need the exception at all, because we cannot think who would be involved. The measure will disapply the equality duty for persons who are not public authorities, but who exercise public functions in respect of decisions on whether to institute criminal proceedings. However, we cannot think of a body that is not a public authority that would, none the less, carry out the public function of prosecuting. The measure was left in the Bill when it probably should not have been, but it is not a change of policy. The CPS remains covered; the judiciary for pretty obvious reasons do not. In a nutshell, I hope that that is sufficient to deal with the hon. Gentlemans concerns.

Amendment 282 agreed to.

Evan Harris: I beg to move amendment 300, in schedule 18, page 216, leave out line 25.

This amendment removes the exemption for the General Synod of the Church of England from the duty in section 143(2).
My amendment was tabled in response to one tabled earlier by the hon. Member for Glasgow, East, which we debated previously, that sought to un-exempt all the law-making bodies, except the Church of England, and remove them from the schedule. I thought that it was only fair that the Church should not be discriminated against and that this matter should be debated. I accept that it is a rather rhetorical point and that it was meant for the hon. Gentleman, so I do not expect the Minister to bother responding to it, because I guess that what she said in respect of lines 21 to 24 would apply. However, I should like to make an extra point.
The Church of England is different, because we have an established religion. Therefore, in my view, anything that it does as a religion that is discriminatory it is entitled to do. It is its own business if it does not want to have women priests or bishops or gay priests or whatever. However, that becomes our business, because the established nature of the Church means that our country, and this institution, is associated with the policies of the Church and many people, including many in the Church of England, do not find it satisfactory that there is essentially a homophobic Church of England and General Synod. Despite the many virtues of many of its policies relating to development aid and so forth, it is still, essentially, endorsing a homophobic position. That is either the Church of Englands business, because it is its own religion, or it is our business because it is the established Church and we are associated with it. The best example of this is in the House of Lords, where seats in our legislature are reserved for heterosexual, white

Ann Winterton: Order. The hon. Gentleman is going slightly astray. This is not about the House of Lords; it is about the Synod.

Evan Harris: I will seek to stay in order, Lady Winterton. My point was that without the duty applying to the General Synod, we end up in a situation where our society is male-only in respect of bishops in the House of Lords and heterosexual-only, which raises the question of whether there is a basis for the General Synods being exempted from this duty. However, I accept that I have gone wider than that point and I apologise for doing so.
I do not expect much of a replyjust an explanation as to why the General Synod is treated in the same as the House of Commons.

Vera Baird: Most of the functions of the General Synod are private, so they would not be subject to the requirements of the duty at all. However, it can pass measures that, if approved by each House of Parliament and given Royal Assent, have the same force and effect as Acts of Parliament. So there are sound constitutional reasons why legislative bodies should not be subject to the requirements of the duty. That is why we keep them out of it.

Evan Harris: I thank the Minister and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Harper: I beg to move amendment 192, in schedule 18, page 216, line 31, at end insert
(j) persons involved in the commissioning, content and broadcast of programmes..

Ann Winterton: With this it will be convenient to discuss amendment 193, in schedule 18, page 216, line 44, at end insert
(g) a function in connection with the commissioning, content and broadcast of programmes..

Mark Harper: The amendments relate to whether the Bill will affect those involved in broadcasting. Committee members will have had a brief from the BBC, Channel 4 and S4C outlining their concerns about whether they will be caught under the Bills provisions. They have made it clear that they are committed to equality of opportunity and diversity and they recognise that, despite the progress they have made, they need to do more. They also mention the diversity pledge they have made, which is a commitment by broadcasters, independent production companies, in-house producers and suppliers to introduce measurable steps to improve diversity.
BBC, Channel 4 and S4C have said that the Bill aims to streamline the law and strengthen equality legislation, that it talks about the public sector equality duty and that it is about the positive duty to promote equality, which will apply to all their functions, unless some are specifically excluded. They are concerned that the Bill will result in inappropriate interference with their editorial independence, thereby having a negative effect on the range and depth of their programmingfrom news and current affairs to dramaand limiting their ability to make challenging content. They have made it clear to Government that functions relating to the commissioning, content and broadcasting of programmes and other output should be excluded from the positive duty to promote equality and from the non-discrimination provisions.
Broadly speaking, that is what amendments 192 and 193 would doat least, I think so. Amendment 192 would amend schedule 18, adding to the list of persons exempted from the public sector equality duty those
involved in the commissioning, content and broadcast of programmes.
Amendment 193 would amend the same schedule, adding to the list of functions that are exempted from that duty
a function in connection with the commissioning, content and broadcast of programmes.
The three broadcasting organisations have explained why this issue matters. They think that if the Bill applied to their content, they would effectively have complaints brought against their programming via the EHRC. That would create for them what they call double jeopardy, because they think those issues are already dealt with by existing broadcasting regulators: Ofcom and the BBC Trust.
The broadcasting organisations suggested two main types of action that might be brought: an action by a member of the audience who objects to a particular aspect of output as discriminatory; or an action by a person who has a closer relationship with the broadcasterfor example, a participant in a show, the subject of a documentary or an interviewee. Examples they have given in the brief include a claim of race discrimination on the basis that, over a period of time, their dramas featured too few non-white people; a claim that they were showing a film that was thought offensive to a particular group; a claim of sex discrimination on the basis that a programme was degrading to women; and a claim of indirect discrimination, in that output generally contained a disproportionate amount of material offensive to a religious group. They said that some of those complaints would not succeed, but even so, just dealing with them would have an impact on time and resources. They also said that it would have an inevitable chilling effect on the creative process.
The broadcasting organisations made the point that if people do not like the content of their programmes, they can already complain via Ofcom or the BBC Trust, and that in the Communications Act 2003 Parliament decided that the process involving Ofcom or the BBC Trust was best placed to supervise and make judgments about programme content and balance. The organisations want the Government to make it clear that they do not intend that functions relating to the commissioning, content and broadcasting of programmes and other output should be covered by the Bills proposed duty to promote equality or its non-discrimination provisions.
I asked the Secretary of State for Culture, Media and Sport what
discussions he has had with the Minister for Women and Equality on the likely effects of the provisions of the Equality Bill on the commissioning, content and broadcast of television and radio programmes.
In a written answer that I received on 9 June, he replied:
Officials from my Department and from the Government Equalities Office have had detailed discussions about any effect that the Equality Bill may have on the commissioning, content and broadcast of television and radio programmes. The Government policy is that the new equality duty should not apply to the commissioning, content and broadcast of programmes.[Official Report, 9 June 2009; Vol. 493, c. 824-5W.]
From my point of view, that is a helpful answer. That may be what the Government intend, but I reread the Bill and the schedule, having received that assurance, and I am not entirely clear that the Bill does what Government policy wants it to do. Given that the Secretary of State has set out what Government policy is, is the Minister comfortable that the clause and schedule as drafted adequately deliver that intention? Alternatively, can the Bill be improved, either by my two amendmentsaccepting that they themselves may be improvedor by tabling alternative Government amendments on Report to ensure that the Bill delivers that policy intention? That is what I am looking for from the Minister.

Tim Boswell: I rise briefly in support of my hon. Friend. It is appropriate to remind the Committee that I am a vice-chairman of the all-party BBC group, although that is not material to the comments I shall make.
I want to begin by reinforcing what has already been said. Of course, the BBC, to some extent exceptionally among public service broadcasters, is in effect a taxation authority, through its operation of the licence fee, for a very substantial sumjust under £3 billion annually. Indeed, in our earlier exchanges about Ministers exercising quasi-judicial functions and the Solicitor-Generals assurance that the Government thought they had covered the coterie of potential prosecutors, I was almost tempted to say that the BBC prosecutes for failures to pay the licence fee. It is the nearest to a public sector body that might have been covered by the discussion. Without commenting further, she might reflect on that before she responds. There is no doubt that the BBC, unless and until the arrangements for public service broadcasting are changedthey are controversial, as she will knowhas a public function.
My second pointoccasionally people can wax lyrical and seek to extend protection into areas where it is not appropriateis that the BBC is an employer. Many of the functions it discharges are, as I understand it, quite properly within the remit of the Bill. I see the Solicitor-General nodding. I do not have a problem with that, and I understand that the BBC also does not have a problem with it. However, the point that my hon. Friend rightly homed in onthe integrity of editorial independenceis serious because clearly, nobody wants to claim that their editorial independence has been subverted, and provisions are already in place for regulation and receiving complaints. I cannot see a strong case for seeking to intervene in such things through the Bill when provision is made elsewhere.
None of that is to say, and nobody is saying, that the BBC and other media or public service broadcasters are walking away from the discrimination pledge. If I recall correctly, I was there when Mark Thompson, who was then leading Channel 4 rather than the BBC, led on the pledge. It is quite right that we should have it. The issue is simply the form in which any disputes are resolved, and I think my hon. Friend has performed a service to the Committee in the researches he has done, and by receiving assurances from the Department for Culture, Media and Sport. I hope that he will receive assurances from the Solicitor-General now.

Vera Baird: Our intention is exactly as set out by the Secretary of State for Culture, Media and Sport. We have also written to the director general of the BBC, but let me again make it crystal clear that we have no intention of encroaching on the independence of public service broadcasters. The duty will not apply to the broadcasting and output functions of the public sectorpublic service broadcasters, whose editorial independence we are committed to retaining.
We will therefore list the BBC, Channel 4 and S4C in schedule 19 when we amend it to put the rest of the list in. When we do so, we will explicitly exclude their broadcast and output functions, which will make the situation clear beyond peradventure. As was said, they need to be in schedule 19 because they have other functions that it is entirely appropriate to cover by the equality duty.

Mark Harper: I am grateful to the Ministerthat is what I was seeking. She rightly says that the broadcasters do not resile from the fact that the duty should apply to other aspects of their role, such as employment. That is why the amendment was focused specifically on commissioning, content and broadcast. Given her assurance about what the Government are going to do to make it explicit that the duty applies to broadcasters in general but not to those particular functions, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Harper: I beg to move amendment 278, in schedule 18, page 216, line 34, at end insert
(aa) a function in connection with membership of the House of Commons;.
I hope to make some remarks that might have been included in a stand part debate and to address the exclusion of the House of Commons from the public sector equality duty. My probing amendment would provide a safeguard. It allows me to raise the exclusion of a Member of Parliament who has been sectioned from membership of the House of Commons under section 141 of the Mental Health Act 1983. I tabled a new clause on the matter, but I will not dwell on that because it was not selected for debate.
I want to consider what would happen if the public sector equality duty was applied to membership of the House of Commons. It states that bodies should eliminate discrimination and advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not. In relation to membership of the House of Commons, that would mean that Members of Parliament who had mental health problems should be treated in the same way as those who had a physical medical condition, but that simply is not the case at the moment.
If a Member of Parliament has a physical problem that prevents them from carrying out their duties, such as suffering severely from cancer, there is no legal way of excluding them from membership of this House. By and large, satisfactory arrangements have been put in place when Members have been physically unable to participate in their duties, such as Members from neighbouring constituencies taking up constituents cases and tabling questions, and their membership of this House has continued. However, the seat of a Member of Parliament who has a mental health problem can be vacated under section 141 of the 1983 Act if they are sectioned for a six-month period and a report is laid before the House. If the public sector equality duty applied to the membership of the House, that would not be allowed to stand.
I think that the Minister was in the Chamber when I raised this issue during last weeks Prime Ministers Question Time. I mentioned that Alastair Campbell had talked about the specific issue when giving evidence to the Speakers Conference on parliamentary representation, which is considering how to make Parliament more representative and diverse. He has great experience of dealing with this issue and he stated that this would be a clear way of changing the law. What he said fits well with the public sector equality duty.
When I asked the Prime Minister whether he would change the provision in the 1983 Act, he said:
Mental health is a serious problem and we should look at it with great care before we make any decisions, but of course I will look at what the hon. Gentleman says. I think he will understand that it needs the greatest of care.[Official Report, 24 June 2009; Vol. 494, c. 793.]
It certainly does. Will the Minister commit to consider this issue with a view to returning to it, preferably with amendments, on Report? It would be better if we dealt with this matter in the House of Commons because that is the body that is affected. However, it would be better to do it in the House of Lords than not do it at all.
The reasons behind the proposal are straightforward. I have never been one for reading out great chunks of Erskine May and I will not start now, but I will read a small section:
Mental illness is a disqualification at common law. There is also, under section 141 of the Mental Health Act 1983...a statutory procedure for vacating the seat of a sitting Member of unsound mind.
That relates only to those of unsound mind. It does not mention those who are physically ill, and that is the discriminatory nature of the current law. Given the way in which the process works, there is not even a requirement for somebody to assess whether the Member of Parliament is capable of doing their job. If an MP has been authorised to be detained, the Speaker would be notified. If, after six months, the specialists report that the MP is suffering from mental illness, and they are authorised to be detained again, their seat automatically becomes vacant. That seems to be discriminatory, and a number of organisations agree. The Royal College of Psychiatrists thinks that it is a discriminatory provision that gives the false impression that an MP cannot recover from a mental disorder. It also makes the point, which was raised by Alastair Campbell, that the provision has never been used. Nevertheless, it stated that it was
a totemic piece of law, which ensures that discrimination exists at the heart of our democracy
and it would like it to be removed.
What would happen if the public sector equality duty applied to the House of Commons specifically with regard to membership? If we think back to one of the previous clauses, we specifically tackled legislation that applied to political candidates, and there are provisions in the Bill for widening the diversity of candidates with regard to gender. If the Bill as a whole were applied to disability, and mental health specifically, that provision would have to go.
The Royal College of Psychiatrists welcomed the fact that I raised that issue last week during Prime Ministers questions. It said that my amendment to the Equality Bill presented a
significant opportunity for MPs to demonstrate to the outside world that discrimination against mental health has no place in parliament.
As I have said, this is a probing amendment and I would like the Minister to take it away, look at it and come back, perhaps with a more elegantly drafted solution. Rethink, a mental health charity, pointed out that there is no such provision for physical illnesses. It said that mental illnesses and physical illnesses were both common and that people could recover from them and lead a full and meaningful life, and so should be treated in exactly the same way. Rethink supports a move to change the law and RADAR, the disability organisation, has welcomed the raising of this issue, as well as the change that would be implemented. There is a clear support for the proposal.
The final piece of evidence that I wish to cite comes from a report on mental health in Parliament carried out by the all-party parliamentary group on mental health. It was based on responses to a questionnaire that was sent out in February 2008 to all MPs in the Commons, all eligible Members of the Lords, and staff members. There were responses from 94 Members of Parliament, 100 Peers and 151 staff membersa pretty good response rateand there were very clear findings. Of those who responded, 94 per cent. had friends or family who had experienced a mental health problem. That number was significantly higher than that found from a similar poll of the general public. One in five MPs who respondedthey did not need to identify themselveshad some personal experience of a mental health problem, and two thirds thought that the fact that an MP would automatically lose their seat if sectioned under the Mental Health Act was wrong.

Ann Winterton: Order. I remind the hon. Gentleman that he must stick to the subject of his amendment and not go too wide. I have allowed him some rein, but I must reign him in now.

Mark Harper: I am grateful for your guidance, Lady Winterton. I will finish off narrowly.
Those statistics are clear, and I think that people have got the message. This is an opportunity for the Minister to go away and look at this issueas the Prime Minister promised that he would do last weekand come back to it on Report, if she thinks that there is something worth moving on. That would get support from not only Committee members, but from across the House and from the public.

Tim Boswell: I assure the Committee that I do not intend to speak at length. I do not guarantee that I will always support my hon. Friend, but I have great pleasure in doing so on this occasion.
My first recollection of this place is being invited to have lunch here in 1959 by the then Clerk, because of school connections. For the record, he had joined this place in 1924, so the link is a fairly long one. I remember listening to the debate on the Mental Health (Scotland) Bill. I will just make the point to the Solicitor-General that we are not many years out of the world of using lunatics, persons of unsound mind and all the other deeply derogatory phrases that we were prepared to entertain in legislation, as well as in substance, for our treatment of persons with a mental health problem. As my hon. Friend said under your tutelage, Lady Winterton, the matter has been one of great concern to the all-party group on mental health. It is a matter of record that the problem has been identified as substantial among our numbers as well as in the population more generally.
My basic support for this is on the stigma issue, but my secondary support relates to the question of what will happen in public policy. One danger is that if a Member has a sufficiently serious mental health problemone that could result in a loss of livelihood, or the threat of a loss of livelihoodthey might not seek or take help as they should, thus aggravating their problems, meaning that they are unable to resolve them, whereas they might have been able to do so if they had been attended to in good time.
My third concern is the potential for discrimination, which is more than purely formal. If we understand the importance of attending to physical disabilitiespeople with physical disabilities have, or should have, opportunities herewe should equally be prepared to deal with mental health issues as well.
My final concernI look at the Annunciator as I say thisis that the provisions interact with the legislation on parliamentary standards and our conduct that is going through this place. Although I know that the Government, on reflection, have made some concessions on the matter, and I think that we should debate that Bill in its context and this Bill in this context, the Minister might well want to reflect on the fact that there is an interaction with whatever a standards authority might want to say about the fitness of persons to serve in this place and expectations.

Mark Harper: My hon. Friend makes a good point. The body that will be set up by the Parliamentary Standards Bill does not yet exist, so clearly it has not been put into this Bill, but it would be interesting for the Minister, when she responds to this debate, to touch on whether the Parliamentary Standards Authority would be captured by the Bill, whether the public sector equality duty would apply to it, and whether that would have any bearing on my hon. Friends comments.

Tim Boswell: I am grateful to my hon. Friend. My concern is with the individual Member of Parliament and whether they would be disciplinable under the Parliamentary Standards Bill or sanctionable through the mental health provision. However equally, as my hon. Friend said, the Parliamentary Standards Authority will clearly be a public body discharging public functions and will, prima facie, be embraced by this Bills obligations, notwithstanding the fact that Parliament is probably seeking to exempt itself. There is a lot to think about. The amendment is looking not for trouble, but for a sensitive and more enlightened approach to how those difficult issues can be resolved.

Vera Baird: We were trying to work out what amendment 278 was for. Not unsurprisingly, we did not. Although the hon. Member for Forest of Dean clearly pinpoints an issue that looks, on the face of it, like discrimination between one kind of disability and another, that is the law, because Parliament has decided that it is so. The equality duty will operate only within the law, so even if it were applied to Parliament, it would not trump the law and get around section 141 of the 1983 Act. The way to deal with the problem is not to apply the equality duty to something that it cannot reach, but to look at repealing section 141, which others are reflecting on, partly in response to the hon. Gentlemans question.

Mark Harper: To help the Minister, I am aware that that is how to do it. I attempted to draft such a clause, but it was not selected. The amendment was a convoluted way of getting the discussion to happen, which we have managed. That was the objective. I am aware of the appropriate solution, which is working out how to get that into lawchanging the law so that that is the objective achieved. We shall not be relying on the public sector equality duty.

Vera Baird: As I say, other people are thinking about a way forward, now that the issue has been drawn into public focus. I invite the hon. Gentleman to withdraw the amendment on the basis that this is not the right place.

Mark Harper: Your admonitions earlier in the debate and my new clause not being selected, Lady Winterton, suggest that the Bill is not the correct vehicle for bringing about that change, despite it promoting equality of opportunity for those with mental health problems and other disabilities. Given the Ministers assurances, following the issue being raised by me at Prime Ministers questions and by others a number of times, that other Ministers are looking at it, I am happy for the time being and, therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 283, in schedule 18, page 216, line 40, leave out paragraphs (d) and (e).

This amendment is consequential on amendment 282.
284, in schedule 18, page 216, line 43, leave out paragraph (f).

This amendment would remove from the exceptions to the duty imposed by clause 143 on persons other than public authorities who exercise public functions, an exception for decisions to prosecute; accordingly, the duties imposed by clause 143 on public authorities, and others exercising public functions, will apply to such decisions.
285, in schedule 18, page 216, line 45, leave out sub-paragraph (4).(The Solicitor-General.)

This amendment is consequential on amendment 282.

Schedule 18, as amended, agreed to.

Clause 144 ordered to stand part of the Bill.

Schedule 19

Public authorities

Mark Harper: I beg to move amendment 266, in schedule 19, page 218, line 43, at end insert
The relevant qualifications regulator (The Office of the Qualifications and Examinations RegulatorOfqual)..
The reason for the amendment was touched on when we debated clause 91 on qualifications bodies. I went through a number of the arguments then, so I shall not repeat them all here. I gave examples in which disabled people, specifically deaf children, when seeking to take examinations appear to have been discriminated against by examination bodies. I gave some examples in which the examination bodies did not seem to have thought creatively enough, while holding up the standards and rigours of their exams, which is clearly important, about how disabled people could be given the opportunity to demonstrate their talent and ability and to show that they were at the appropriate level of skill. The Solicitor-General rightly responded briefly and made the point that, when we came to schedule 19, we could hit the nail more firmly on the head when talking about the equality duty.
The amendment is about making sure that the qualifications regulator is explicitly mentioned as one of the bodies. I wanted to make sure that the issue was discussed, partly because of the specific cases, but I also remember a discussion that we had much earlier in the Bill concerning which bodies were included. We had a discussion at that point in response to amendments tabled by the hon. Member for Hornsey and Wood Green about regulatorsspecifically energy regulators. The Minister made the point then that it would not be appropriate to extend that particular duty to the regulators because they did not have the appropriate powers to take those steps.
If the amendment were accepted and the Office of the Qualifications and Examinations Regulator were included, I should like to explore whether it would have the appropriate powers. I think that it would because it is specifically given the power to make decisions about which adjustments should not be considered reasonable, and also about what parts of the qualification of a qualification body are not subject to adjustment.
I have specifically focused on Ofqual in England in the amendment, but there are equivalents in Wales and Scotland that I have not specifically mentioned Those regulators have powers over qualification bodies about what adjustments are reasonable or are not reasonable and, by implication, what is reasonable. They also have powers about what parts of their qualifications are not subject to adjustments and, by implication, which are.
The measure takes some decisions about competence standards and reasonable adjustments away from courts and gives it to the regulator. In this particular case, the regulator has some powers and abilities to take steps to insist that qualification awarding bodies behave in a particular way. The powers piece is made clear.
I laid out some specific examples when we debated clause 91. That can be found in the report of our proceedings in Hansard, so I shall not repeat those and I think that the Minister can remember one or two of them. My amendment seeks to find out whether she thinks that explicitly putting the qualifications regulator in the schedule would be useful and help to deal with some of the cases that I mentioned. If she does not want to accept my amendment, what alternative solution does she propose in order to deal with those examples of discrimination that I have highlighted under clause 91?

Vera Baird: I completely agree that Ofqual should be subject to the equality dutyit has all the roles that the hon. Gentleman has outlined. The Qualification and Curriculum Authority is subject to an existing equality duty. He has spoken about his concerns that qualification bodies need to do more to meet the needs of disabled people. We think that by showing that Ofqual is subject to that duty it will need to think more creatively about how it works with the disabled.
The specific duties consultation document proposes a duty to involve people from the protected groups, including the disabled, when drawing up policies and taking decisions. That duty will be highly relevant to engaging Ofqual in using more imaginative ways to ensure that the disabled do not suffer in their attempts to learn. There is a but, which concerns the peculiar state of Ofqual.
It would be useful to mention the way that we have approached schedule 19. I have already alluded to that, but I shall now do it at the right place. Ofqual exists, but only on an interim basis. The Apprenticeships, Skills, Children and Learning Bill, which is in the Lords, will put Ofqual on a statutory basis and we will put Ofqual into schedule 19 when it has that status.
As I have already said, we have a core of about 90 per cent. of public authorities already in schedule 19. However, we are talking to a number of other bodies that we think should be included in the schedule. We will update the schedule through secondary legislation before the new duty comes in, in 2011, so that there is no gap in coverage.
That is the same process that was used to build up the list of bodies subject to the race duty. I have already referred my hon. Friend the Member for Stroud, who is not in his place, to that sizeable list and we are following that precedent. It allows us to have informed discussions with those we want to list. Public authorities need to let us know their views on whether they should be subject to the duty, but they need to know what the general duty is. Therefore, we have put it out publicly and we will engage with them now that they know what being a public authority will involve. We would like to deal with Ofqual at the same time, but we will definitely put it in schedule 19.

Mark Harper: I am grateful for the Ministers assurance. I recognised the point about the status of Ofqual, which is why I tabled the amendment to test it, but she has confirmed that once it has become a statutory bodyonce the other Bill has passed through Parliamentit will be included. That is what I was seeking to do. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 19 agreed to.

Clause 145

Power to specify public authorities

Question proposed, That the clause stand part of the Bill.

John Mason: With your indulgence, Lady Winterton, I should like briefly to comment on clauses 145 to 149. The Government appear to be aiming to create wide-ranging order-making powers for themselves to fill in the gaps in the public sector duty. Clauses 145 and 146 create powers to specify

Ann Winterton: Order. I wonder whether the hon. Gentleman would concentrate on clause 145, which is what we are debating at the moment.

John Mason: I shall make a few comments on that clause that will apply more widely to the other clauses, but I shall not repeat it each time. Creating the powers to specify which public authorities the duty will apply to is too important to be left to secondary legislation. I should be interested to hear the Minister say why, after 10 years or so of preparation, the Government have not been able to include more detail in the Bill.

Vera Baird: The clause is needed to allow us to amend schedule 19 in the way that I have just described, and we intend to amend it. We have published what the general duty will involve, with the intention of extending the reach of schedule 19 to other bodies that we think should be in it, but we did not feel that it was right to do that until we had finalised the general duty. Now that duty is in the public domain we can enter into those conversations, but we need a power to add provisions, as necessary, to the schedule.

Question put and agreed to.

Clause 145 accordingly ordered to stand part of the Bill.

Clause 146 ordered to stand part of the Bill.

Clause 147

Power to impose specific duties

John Penrose: I beg to move amendment 22, in clause 147, page 108, line 27, at end insert
(5) Before regulations are made under this section, there must be laid before both Houses of Parliament
(a) draft regulations, and
(b) evidence that the regulations will enable the better performance by public authorities of the duty imposed by subsection (1)..
Amendment 22 is rather similar to amendment 21 on clause 143, which we discussed earlier, as Committee members can tell from the sequential numbering. The amendment would ensure that the Government are producing plenty of proof and evidence about the effectiveness of the public sector equality duty, both for current consumption and to ensure that we have an evidence base to see how well the duty is working and whether it can be made to work more effectively and efficiently in future.
Clause 147 allows a Minister of the Crown to impose additional duties on a public authority specified in part 1 of schedule 19 for the purposes of enabling a better performance by the authority of that duty. The amendment is duplicating the questions that we were asking with amendment 21 to clause 143. Since the Minister has already given a fairly full answer to that previous amendment I will not ask her to repeat it, but I should like her to clarify what she believes is the scope of the powers that could be required under the clause, where the edges of those powers would be and what she feels would be the maximum scope that could be applied and, therefore, the extent of the evidence that might be required, which I hope that the Government will produce in any case, bearing in mind the response that the Minister has already given to the Committee on amendment 21. I hope that she can clarify the matter and help us.

Vera Baird: The amendment would have an interesting effect. Regulations can be made under the clause by the Welsh and Scottish Ministers, too. I am sure that the hon. Member for Weston-super-Mare did not mean it, but the amendment would require Scottish Ministers as well as Welsh Ministers to lay before the Westminster Parliament any regulations that they intend to make before imposing specific duties on public bodies. My note drafter has described that as not showing sufficient respect for the devolution settlement.
To get to the point, the power under the clause to impose specific duties is subject to affirmative procedure in Parliament under clause 195(4) and (5). Draft regulations will have to be laid before the imposition of specific duties, and they will be debated. The amendment would add nothing to that. Evidence will be tested in debate and we are consulting, as the hon. Gentleman knows, on our proposals for specific duties, some of which I recited this morning. We have published the independent research that we commissioned to inform those proposals and, when we have finished consulting on the plans, backed up by that research, we will consult again on the draft regulations and also consult the EHRC since it will have to implement and police everything that is introduced. The combination of all that consultation, which the hon. Gentleman is welcome to join, with the affirmative procedure in Parliament is probably sufficient, and I invite him to withdraw the amendment, especially as it would have a funny effect on Wales and Scotland.

John Penrose: Perish the thought that the amendment would unintentionally have a funny effect on Wales and Scotland. I thank the Solicitor-General for her helpful drafting hints and, given what she said and the remarks she made about the earlier amendment to clause 143, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 147 ordered to stand part of the Bill.

Clause 148

Power to impose specific duties: cross-border authorities

Question proposed, That the clause stand part of the Bill.

Mark Harper: I have some brief questions, one of which caught my eye mainly because the geographical location of my constituency, the Forest of Dean, is on the border between England and Wales. I do not know whether it is relevant, hence my wanting to test it, but I want to know exactly what is meant by the provision. The clause refers to part 4 of schedule 19, so I looked at the schedule, but there is not yet a part 4. I presume that it will contain reference to the cross-border authorities. I was not entirely certain what sort of bodies they will be.
My constituency has many issues with public bodies and matters that have been devolved to the Welsh Assembly Government, but are also exercised in England. Such functions do not work well across borders: NHS functions, public transport functions, and in particular concessionary fares. Furthermore, clashes can occur with different rules in respect of education, particularly on transport to education facilities, which is important in a rural area.
I am not entirely certain whether current cross-border authorities would be captured by the clause.

John Penrose: Like my hon. Friend, my constituency shares a border with Wales, albeit through the middle of the Bristol channel. Will the Solicitor-General explain, for example, whether an authority in charge of both constructing and managing a future Severn barrage, reaching from one side of the Severn to the other, would be included in that classification of authorities and qualify under the rules?

Mark Harper: My hon. Friend makes a good point. That would be a classic case of an undertaking that could cost a significant amount of money, and it would need statutory authority. One part would be in England and one would be in Wales, so there would have to be a fair bit of co-operation between the UK Government and the Welsh Assembly Government. Any legal jurisdiction or body that was created to bring that about would have a cross-border function. It might well be the kind of thing envisaged under the clause.
Will the Minister tell us whether we have any cross-border authorities already? If we do, could we have some examples? If we do not, what kinds of things are Ministers talking and thinking about? Constituencies like mine on the English-Welsh border and those on the English-Scottish border have specific concerns about any possible impact. I am thinking particularly about how those authorities would treat people who live on the other side of the border. I will give just one example so as not to test the patience of the Committee. My example relates to the national health service.
I have a number of constituents who live in England and whose GP is physically based in Wales, although some are physically based in England but registered in Wales, so they are regulated under the jurisdiction of the Welsh Assembly Government. That has consequences for their access to secondary health care and the screening regimes undertaken by the health service. Constituents who live and vote in England, and who ultimately decide on the policies of the UK Government on the NHS in England, are treated differently from constituents who live elsewhere in my constituency but whose GPs are not registered in Wales. Clearly, that has an impact on the public sector equality duty and the bodies making decisions about how they treat people and whether decisions should be based on geographywhere they live or where their GP is registered. There are clearly policy implications and that is why I am trying to get a handle on which kinds of bodies are affected. If we are talking about bodies that are not necessarily called cross-border but that have some kind of cross-border impact on the policy functions that they exercise, whether in health, education or transport, that might bring them into part 4.
Finally, does being in part 4 and being a cross-border authority make any difference to how the duties are applied? Again, what I am driving at is: how will people from different sides of the border be treated?

Vera Baird: First, on the absence of part 4 of schedule 19, it will be created under clause 145(6) the first time a cross-border authority is added to schedule 19. Subordinate legislation to the Scotland Act 1998 contains a list of Scottish cross-border bodies, so that they are easily identifiable. They include British Waterways, the British Wool Marketing Board, the Criminal Injuries Compensation Authority and its appeals panel, and more. However, there is not an equivalent list for Welsh cross-border bodies, so we need to develop a different approach. Not only do we have no schedule; we have nothing about Wales to put in it right now, but we are working on that.
The cross-border authorities are public bodies that have a mixture of devolved and reserved functions, which operate in more than one nation. They have to be treated as a separate category of public authority, distinct from Scottish, Welsh or English bodies. Because they have devolved as well as reserved functions, we need to say who has the power to impose specific duties on them. It is intended that that will be done case by case.

Mark Harper: For the avoidance of doubt, is the Solicitor-General saying that there are two tests, both with reserved and devolved elements, operating in the two jurisdictions, and that my example of an NHS body in Wales may affect constituents who live in England and Wales, but because it is a wholly devolved power, it would not be captured by the provision for cross-border authorities? I think that that is what she said.

Vera Baird: Inspiration tells me that we should look at clause 151, which refers to a relevant Welsh authority, whose functions
are exercisable only in or as regards Wales, and...wholly or mainly devolved Welsh functions
and a cross-border Welsh authority, which is not one of the above and has functions that are exercisable
in or as regards Wales, and...is a devolved Welsh function.
That seems to suggest that being a devolved Welsh function makes something into a cross-border Welsh authority, if indeed it is cross-border, because that is presumably a key requirement.

Mark Harper: That is helpful, but not necessarily to the Minister. Subsection (2) says:
A relevant Welsh authority
so that is not a cross-border authority
is a person whose functions
(a) are exercisable only in or as regards Wales, and
(b) are wholly or mainly devolved Welsh functions.
That sounds like the NHS bodies in Wales that deal with wholly or mainly devolved Welsh functions, but it depends on the interpretation of being
exercisable only in or as regards Wales.
Around 6,500 of my constituents are in England and registered with a GP who is not necessarily in Wales, but may be in England, and if they are part of a bigger practice they may be registered in Wales. It sounds as though those functions and their impact are exercisable not only in Wales, but stretch across the border into England and affect a significant number of people. Such a body would not then count as a Welsh authority but would fall into the definition of a cross-border Welsh authority because it had a function that was exercisable
in or as regards Wales
and was devolved. It would not fall into the definition of a Welsh authority, which would put it in the cross-border category. If my interpretation is correct, how does the duty apply to a cross-border authority?

Vera Baird: There is a provision covering Scottish cross-border authorities, but I shall concentrate on Wales. In Scotland, the power to impose specific duties is split between the UK and Scottish Ministers, but Wales, for the reasons that the hon. Gentleman gave, requires a more nuanced approach to fit the different devolution settlement. The provision is about who imposes specific duties, and for some cross-border authorities we will split the power between UK and Welsh Ministers. That is procedure A. For other bodies that have only minimal devolved functions or whose administrative set-up means that it is hard to distinguish between devolved and reserved functions, UK Ministers will impose specific duties on all their functions, but they will consult with the Welsh. It is a question of degree.
The definition of a relevant Welsh authority in clause 151 means that some bodies will have mostly devolved functions, but a few reserved functions. In such cases, we contend that Welsh Ministers can impose the specific duties. It is a question of balance and nuance.

Mark Harper: Taking my specific example, if it were decided that because the NHS body had a significant reach across the border, and it was therefore a cross-border authority, both Welsh Assembly Ministers and UK Health Ministers would have an impact. If that is the interpretation, I am pleased, because I do not seek to undo the devolution settlement and have UK Ministers telling the Welsh what to do. But if the Welsh Assembly Government are responsible for a significant amount of policy with regard to the NHS that affects my constituents, there needs to be some democratic input into that process. If UK Ministers have none at all, my constituents will be being affected by policies of a Government over whom they have no democratic control at all. What the Minister is saying is therefore very helpful.

Vera Baird: That is what I am saying and I am glad that the hon. Gentleman is satisfied with it. We think that we have been both pragmatic and even-handed.

Question put and agreed to.

Clause 148 accordingly ordered to stand part of the Bill.

Clauses 149 and 150 ordered to stand part of the Bill.

Clause 151

Interpretation

Vera Baird: I beg to move amendment 84, in clause 151, page 111, line 8, after person, insert
other than the Assembly Commission.

This amendment would provide for the National Assembly for Wales Commission not to be a relevant Welsh authority; accordingly, a Minister of the Crown (not the Welsh Ministers) would have power to make an order to add the Commission to Schedule 19 or to impose specific duties on it.

Ann Winterton: With this it will be convenient to discuss Government amendments 85 and 86.

Vera Baird: The Government amendments ensure that a Minister of the Crown is the only person able to impose specific duties on the National Assembly for Wales Commission. That is at the request of the commission and is consistent with the position for the equivalent Scottish bodythe Scottish Parliamentary Corporate Body. From a constitutional point of view, it would not be appropriate for the Scottish or Welsh Ministers to impose specific duties, as members of the Executive, on parts of the legislature, so those specific duties can come only from a Minister of the Crown.

Amendment 84 agreed to.

Amendments made:85, in clause 151, page 111, line 12, after authority, insert or the Assembly Commission.

This amendment would provide for the National Assembly for Wales Commission not to be a relevant cross-border authority; accordingly, a Minister of the Crown (not the Welsh Ministers) would have power to make an order to add the Commission to Schedule 19 or to impose specific duties on it.
Amendment 86, in clause 151, page 111, line 14, at end insert
( ) The Assembly Commission has the same meaning as in the Government of Wales Act 2006..(The Solicitor-General.)

This amendment would define the Assembly Commission in amendments 84 and 85 as the National Assembly for Wales Commission or Comisiwn Cynulliad Cenedlaethol Cymru.

Clause 151, as amended, ordered to stand part of the Bill.

Clause 152

Positive action: general

Lynne Featherstone: I beg to move amendment 303, in clause 152, page 112, line 19, after needs, insert
to the extent that it is reasonable to meet them.

To ensure that bodies do not undertake unreasonable measures positive action to accommodate unreasonable needs.
We now move to the positive action provision. This is a probing amendment on the general application of the provision. Clause 152(2) states:
This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim.
Our amendment relates to paragraph (b), which refers to meeting those needs. As the clause does not refer to a legitimate aim in relation to undertaking positive action, the amendment would impose a reasonableness test when the needs of a person with a protected characteristic were being considered. At the moment, the need could be unreasonable, because there is no legitimisation of the aim. I hesitate to tread on religious territory when my hon. Friend the Member for Oxford, West and Abingdon is not present, but it could be any of the protected characteristics. If a religious view could be considered unreasonablefor instance, that all gay people have no place in society or that all women should wear a burqasurely it would be unreasonable to undertake positive discrimination to accommodate that view, to accommodate the need of the person requiring it.
This probing amendment is designed merely to test what traction, in legal terms, need has on its own without there being a legitimate aim and whether we need to include a reasonableness test to ensure that there are no untoward or unintended consequences. I am interested in what the Minister has to say.

Vera Baird: I appreciate that we would not want the provisions allowing positive action to be misused in any way that could be considered unreasonable, but we think that there are sufficient protections within the four corners of the clause itself.
Clause 152(1) requires that a person who intends to take positive action reasonably thinks that people within his remit
who share a protected characteristic suffer a disadvantage
or
who share a protected characteristic have needs that are different
or that participation is disproportionately low because of a protected characteristic. There has to be a reasonable point of view in the first place, before any positive action even comes on to the scene. That is an important protection.
There is also clause 152(2), to which the hon. Lady referred, which requires the action to be taken to be a proportionate means of achieving the aims set out in paragraphs (a), (b) and (c). She is mostly concerned with meeting those needs. Again, this is about balance and appropriateness. Even if it were possible for a person to use the provision to meet unreasonable needs, the steps to meet their demands would have to be proportionate, so it is difficult to see what good the provision would be to them.
The clause includes a power to make regulations to set out action that would not be permitted, so there is a power if there were ever something capable of being envisaged in advance that we would want to exclude on an unreasonableness basis. Always, when looking at positive action, the EHCR is committed to issuing clear guidance. In this case, since this is a new power, guidance probably ought to include examples of the kind of needs for which protection is intended.
I hope that the hon. Lady is satisfied that those two distinct sets of phraseology within the four corners of the clause will fit the need to ensure that the protection is not abused, and we expect good guidance from the commission.

Lynne Featherstone: I thank the Minister for that helpful explanation. There are indeed enough safeguards in place. With those words on the record, it is clear that unreasonable needs would not be permitted. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mark Harper: I do not want to speak terribly long on clause stand part, but, before we move on to clause 153, I would like to draw some distinctions, and invite the Minister to do so as well, and set out just what is and what is not included in positive action. Having read the clause, I am happy to support it, because positive action is distinct from positive discriminationI think Members have said thatwhich I would not be in favour of.
The Committee must be careful to be clear about what we mean. On one or two previous clauses, there has been some confusion in language when people have said positive discrimination when what they meant was positive action. The two are distinct.
I can give an example of positive action. Perhaps a particular group is under-represented in someones work force. The employer might decide to advertise in a particular publication that was read by many in that group, or, if they were going out and physically recruiting, they might decide to target particular geographic areas to try to increase the number of people who apply for a job in their organisation. That is a positive step to try to widen diversity, but, crucially, it is not discriminating against anybody else. It is not stopping anybody else from applying for a role and, assuming that the organisation is advertising in other publications as well, it is not prohibiting or disadvantaging anybody. It is simply trying to widen the pool. Positive discrimination would be where an organisation was trying to widen its diversity, but it was doing so by specifically discriminating. I will cite a specific example from my own constituency when we come to clause 153. It is worth clarifying this matter so that people outside are clear what this provision permits them to do and what it does not.
The Law Society, which provided us with a brief on clause 152, specifically says that
the current positive action provisions in current legislation can be confusing for employers.
Presumably, if they are confusing for the Law Society, which should understand this stuff very well, they will be confusing for pretty much everybody else. It makes the point that it uses existing usual targeting measures. It says:
Broadening the circumstances in which an employer can draw attention to an imbalance in an advertisement might be helpful.
Again, an organisation will not say that people from another group should not apply or that it is biased in favour of a particular group. It will simply be saying that in its work force, there are groups that are under-represented and it may encourage people who share that protected characteristic to apply. As long as it does not discriminate against people who do not have that protected characteristic, I see nothing harmful in doing that at all, and this particular clause is welcomed by the Law Society.
For the avoidance of doubt and to stop those who like to misuse and misrepresent such provisions, it would be helpful if the Minister could outline what the Government mean by the clause and what they do not mean. That would benefit both the Committee and those outside who are listening to our proceedings.

Vera Baird: I am glad to have a welcome from the hon. Gentleman. The measure is not a wholly new concept. Provisions on positive action already exist within the Sex Discrimination Act 1975 and the Race Relations Act 1976, and the clause is an extension of that. Positive action provisions can apply in different ways to different characteristics. They can even apply to some and not to others. We now intend to regularise them and to make a platform for all of the strands. The first thing that the clause does is establish a permissive framework under which forms of positive action can be taken. Any use of such provisions will be entirely voluntary. There is no requirement for them to be used by specific individuals or organisations. Although they are voluntary, lots of UK businesses have recognised the benefits of using positive action to create a more diverse work force, to better understand customers needs and to attract new business. Therefore, the provisions will be used, but it is important to emphasise that they are totally voluntary.
The second characteristic is that it is not, as the hon. Gentleman has said, positive discrimination. Positive discrimination would favour a person from a particular under-represented or disadvantaged group solely because they come from that particular group irrespective of merit. In the main, positive discrimination is unlawful in the UK. Therefore this is not positive discrimination. We are not talking about favouring somebody just because they come from a particular group. The provisions are about ensuring that peoples needs are met, that they have equal opportunities and that they are not held back because of a particular characteristic.
The clause will have effect in cases in which it is reasonable to consider that those with a protected characteristic suffer a disadvantage that is linked to that characteristic, that those who share the characteristic are under-represented in some way, or that those who share the characteristic have particular needs not shared by those without the characteristic in question. In any such situation, the clause will enable organisations, public authorities, employers and service providers to take a wide range of positive action measures to address the disadvantage, and to increase the participation of people with that characteristic. Moreover, any action must be a proportionate way of accomplishing the intended outcome. I am referring to specific training opportunities, targeted health services to address particular needs and providing lessons exclusively for disadvantaged pupils. We want to ensure the appropriate usewe have just canvassed thisof the positive action measures.
The clause contains a power to make regulations to set out what would not be permitted under it. It ensures that any act that would be unlawful under any other legislation will not be permitted by it. It also provides that if positive action measures are taken under clause 99, which is about the selection of candidates and clause 153(3) regarding recruitment or promotion, which we will come on to in a minute, those provisions will apply, rather than clause 152.
In addition, should the provision allowing registered political parties the use of single sex shortlists in selecting election candidates, which clause 99(7) deals with, be repealed, the clause will not allow the use of similar measures to be takenI emphasise that point, and it is only what is permitted within the law. Where there is a specific provision to cover a specific kind of positive action, that is the provision that will prevail, not clause 152.

Question put and agreed to.

Clause 152 accordingly ordered to stand part of the Bill.

Clause 153

Positive action: recruitment and promotion

Mark Harper: I beg to move amendment 29, in clause 153, page 113, line 2, leave out reasonably thinks and insert can demonstrate.

Ann Winterton: With this it will be convenient to discuss the following: amendment 23, in clause 153, page 113, line 16, leave out as qualified as and insert equally qualified to.
Amendment 31, in clause 191, page 136, line 4, leave out thinks and insert can demonstrate.
Amendment 32, in clause 191, page 136, line 9, leave out thinks and insert can demonstrate.
Amendment 33, in clause 191, page 136, line 16, leave out thinks and insert can demonstrate.
Amendment 34, in clause 191, page 136, line 23, leave out thinks and insert can demonstrate.

Mark Harper: The clause specifically looks at recruitment and promotion regarding positive action. My amendments may be broken down into three groups. The first consists of amendment 29. Currently, subsection (1) refers to the way that a person can use the clause. I object to the words reasonably thinks, preferring can demonstrate, just to get rid of the thinks part, and make the definition slightly less subjective. That is the first amendment, which is a relatively small one, and I do not want to make a huge deal about it.
The amendments in the next group are similar, as they have the thinks word in them, which is why they have been grouped together. They would amend clause 191, which refers to the Minister rather than Person (P). I will deal with those at the end of my remarks, because they are not talking about positive actionthey have been grouped with it because they use the same concept.
The crux of my argument on the clause is on amendment 23. It would amend the clause by replacing the words as qualified as with equally qualified to. It may sound a small change, but it is significant in respect of how the clause would operate. The amendment would change it from a way that my party and I do not find acceptable to a way that we would.
It would also mean that the Bill will be in line with the explanatory notes, which talk about candidates being equally qualified. It is my contention that that does not mean the same as as qualified as. Equally qualified implies that the candidates are equal in every material way pertaining to that particular job, either as a new recruit or as a promotion. This is the argument that has been used by both Ministers and the EHRC: where we would usually have two equally qualified candidatesthe larger the number of candidates, the less likely, I suspect, that they would be equally qualifiedthe clause would be used as a tie-breaker.
An example commonly used by the EHRC, us and Ministers is that of a primary school in which all the staff are female and there are no male role models for the pupils. Let us say that the head teacher has a vacancy for a new teacher and there are two candidates equally qualified in terms of teaching ability and how they would fit into the school; in all ways they are the same, but one is a man and one is a woman. The contention is that the clause would enable the head teacher to say that there are some good reasons why it would be good to have a more diverse work force and to have a male role model in the school. Therefore, because the two candidates are equally qualified and capable of doing the job, the head teacher would prefer the male candidate in order to have a more diverse work force. In those limited circumstances, in which there are two equally qualified candidates, we would be content with that.
If two equally qualified candidates are genuinely equaland there is only one jobthere has to be some way of making a hiring decision. Widening the diversity of the work force seems to be as good a reason as any. Alternative ways of making the decision would be completely subjective, for example by asking, Do I like them?, Who do I like best?, Who would I get on with best?. I suspect that that is how a lot of hiring decisions are made. In the limited circumstances I have mentioned, widening the diversity of the work force seems as good a way to make the decision as any.
The problem with how the clause is currently drafted is that the use of the words as qualified as does not have the same meaning at all for me. Those words seems to set a bar or hurdle and indicate that there are a certain set of qualifications or characteristics that are needed for the job and that, as long as someone gets over that bar or requirement, they are equally qualified to do the job and to be recruited or promoted as any other candidate. That leads to a problem, because if someone is in that situation and they have a significant number of candidates, we will start to get what is effectively positive discrimination, which I do not think we want.
I hope that I am not talking out of turn here, but I have discussed the matter with the chairman of the EHRC, who conceded that it was unlikely there would be equally qualified candidates applying for a role. He agreed with my characterisation that as qualified as would put candidates within a band of capability. He suggested that as long as the difference between the candidates was fairly narrow, the diversity measure could be allowed to kick in. The danger in relation to that is where to stop.
The heart of the matter is if there are two equally qualified candidates and one or the other gets the job, it does not cause too many problems. However, a situation might arise in which candidates are qualified for the job and able to meet the criteria, but there is a big difference between some of them and a number of the candidates are much better. Let us say that those who are better happen to be men and that although there are female candidates who are qualified to do the job, they are not as qualified as the male candidates. If the work force is largely male, the employer might decide to hire or promote the female candidate. It seems likely that that would stir resentment because weaker candidates are being preferred purely because of their gender. That is certainly not helpful to the cause of equality. That would give equality a bad name and damage the idea of fairness. It could lead to what the hon. Member for Oxford, West and Abingdon suggested in relation to a different matter, with people not thinking that this sort of thing applies to them.
I have a specific example for the Minister of such a situation being damaging. In my county, back in 2006, the Gloucestershire constabulary admitted breaking the law because it had a policy of deselecting potential recruits because of their colour. It was trying to advance the diversity of its work force, mainly to meet a Government target for ethnic minority recruits, so that the percentage in the force matched exactly the percentage in the county. The reason why I am aware of it is that it affected one of my constituents, who was certainly qualified to do the job. He and a number of others were disregarded in the selection process purely because they did not meet the criteria for advancing the diversity of the work force as far as race and colour were concerned.
Apart from being illegalI am not sure that it would be if we allowed the wording as qualified as, because that implies that one could have a large pool of candidates and then start making decisions about the diversity of ones work forceI do not think that the measure sits well with subsection (4)(b), which prohibits a policy, because as soon as one starts talking about lots of people, one is effectively talking about a policy.
Such measures lead to damaging headlines and damage the cause of equality, as well as creating the slightly bizarre situation of a police force going around breaking the law. I do not think that it is particularly effective. We do not want a situation where candidates applying to join an organisation are discriminated against because of their colour. I want to ensure that the clause will not allow that sort of behaviour to become lawful, as it is damaging, and it is difficult to explain to constituents why they should be treated in that way.
Just so that the Minister is aware, a number of organisations concerned about such matters have reached the same conclusion in their briefs for members of this Committee; I presume that other hon. Members have them. The British Retail Consortium agreed absolutely that companies should address under-representation in their work force, but notes the difference between the explanatory note, which discusses candidates who are equally qualified, and the term as qualified as in the Bill. The BRC agrees that the two are distinct and likely to confuse and believes, as I do, that the wording of the Bill suggests a principle of minimum merit or a bar that must be got over, whereas equally qualifies indicates that candidates have got to the same level. The BRC wants clear guidance for employers so that they do not fall foul of the law. It says explicitly that it supports amendment 23 because it believes that the wording is much clearer than the Bills.
The CBI, in its briefing for the Committee, is happy with the tie-break concept but not with how it is currently drafted. It does not think that the Bill is clear enough about how the tie-break would work in practice, or that the word qualified is defined in any way. The CBI is unclear whether the use of the word qualification is purely academic or whether it will apply more widely to consideration of the candidates qualities and ability to do the job. Those things are clearly important, particularly when it comes to promotion, which is likely to be based not on paper qualifications but on ability to do the job.
The British Chambers of Commerce suggests in its memorandum to the Committee that the majority of businesses will use the provision, but that those that do will want certainty. The BCC also notes the difference of language between the Bill and the explanatory notes and does not think that the two are the same. The BCC explicitly supports our amendment, as do a number of organisations. When the Minister responds, she needs to explain why the Bill uses the language that it does and whether it means the same thing.
My final point pertaining to amendment 23 concerns subsection (4)(b), which says that the person concernedthe company, the business or whatevercannot have a policy of treating people who share a protected characteristic more favourably but must take decisions on a case-by-case basis. I think that that works and I know that it is there because that is what the European directive requires. I cannot remember whether we discussed that in Committee or whether it was in a discussion I had with the EHRC. I can see that that holds up for two equally qualified candidates, where it is not about policy but a decision between two individuals.
If the language as qualified as is used for a pool of candidates, any organisation bigger than an individual employer who makes the decision himself will have to have a policy. That means that we will be encouraging people to take positive actions when they have a pool of candidates and giving them the power to do it, but saying that they cannot have a policy. Recruitment and promotion decisions will then be taken under the table, out of sight and not in accordance with a policy. We should not encourage businesses to go down that route.
Amendments 31 to 34 apply to clause 191. They have nothing to do with positive action but have been put in this group wisely because of the similarity in the words thinks and demonstrate. Clause 191 is about harmonisation and will enable Ministers to amend the Bill through order-making powers. I will not go into whether order-making powers are right or wrong because we will discuss that under clause 191.
My objection is that clause 191 contains four references to Ministers being able to use order-making powers because they think something. I am not happy that we are giving Ministers powers to amend primary legislation by order, but if are, we should jolly well have objective tests that can be reviewed properly through judicial review and that can constrain Ministers actions.
I will go through the provisions of the clause briefly one by one. Line 4 states that clause 191 applies if
there is a Community obligation of the United Kingdom which a Minister of the Crown thinks relates to the subject matter of the Equality Acts.
It would be better to say that the Minister must demonstrate that it does. Ministers should not be able to use this clause simply because they think something. That does not give a judge much to go on.
If the Minister thinks that the community obligation relates to the subject matter of the Bill, clause 191 applies only if
the Minister thinks that it is appropriate to make harmonising provision.
Again, that relies just on the Ministers opinion. There is nothing for a judge to test it against. There is no guidance for Ministers on how they should make such decisions. It is just down to whatever they think. The clause gives the Minister the power to make the harmonising provision by order to change primary legislation. I do not think that that is sound.
There are some rules about the timing of making the order. Clause 191 says specifically that there must be consultation and prohibits the Minister from making the order before the end of the period of 12 weeks after the consultation starts. As we are talking about changing primary legislation, the Minister is not allowed to make the order before the end of that period unless he thinks that the
making of the order is a matter of urgency.

Sitting suspended for a Division in the House.

On resuming

Mark Harper: I was running through amendments 32 to 34. I had just finished with the fact that there is a provision under clause 191(5) that says that the Minister cannot make an order until there has been a 12-week consultation period, unless the Minister thinks that making the order is a matter of urgency. There is no test, there are no criteria, on which the Minister has to base that decision. Potentially, the Minister, having thought that changing the law was necessary, could start a consultation process, which is mandatory, and pretty much as soon as that process was started could think that the order was a matter of urgency and change primary legislation by order. That is simply not appropriate. The Minister ought to have a test at least of demonstrating that it is necessary, rather than just thinking it.
The final example of what I want to change is on line 23 of page 136, which explains what a harmonising provision is. Again, it is what
the Minister thinks is necessary or expedient.
I always get nervous about the word expedient, particularly when it is allied to a Minister thinking something.
The amendments in the group would take out the word thinks and put in the more objective test of can demonstrate. Such a wording would imply that a Minister would have to produce some evidence and tests to be met. The amendments are wide-ranging and I look forward to the Ministers response.

Vera Baird: Amendment 29 would make statistical evidence a prerequisite for employers to justify the use of positive action measures. The formulation of wording used in the Bill is reasonably thinks, which we stick to. That wording requires a decision maker to act reasonably when deciding whether to use the measure. If a decision is taken to use the measure and there is no evidence to suggest that people having the protected characteristic have ever been disadvantaged or under-represented, it would be open to challenge. The provisions take into consideration the voluntary nature of the use of positive action measures and the fact that any use of the measures would need to be plausible, otherwise it would be open to challenge.
The wording can demonstrate would obviously provide a higher threshold based on statistical evidence, but we think that that would have a chilling effect on the willingness of employers to use such measures, even when they can make clear identifications from their day-to-day business, from the evidence surrounding them, from their own understanding of the market and from the need to redress any imbalance in their work force. In the face of something that they might regard as completely clear evidence that they ought to use the power, and that convinces them that they wish to use the power, they would be unable to do so, unless they could get some presumably rather expensive consultant to obtain statistical evidence to ascertain that what they could see before their very eyes was in fact statistically justifiable. We do not think that that is a good thing to impose on businesses, and it would undermine the impact of the provisions. Clause 153 sets out the criteria by which the provisions may be applied, while subsection (4) specifically ensures that employers cannot abuse the positive action measures. We would resist the amendment and, in the light of our argument, we ask the hon. Gentleman to withdraw it.
We also resist amendment 23, which would change the present wording of subsection (4)(a) from as qualified as to equally qualified to. Although that does not sound like much of a change, it probably is in the way that the hon. Gentleman suggested, and it is something that we ought to give at least a full airing. The point of the provisions is to allow employers to take targeted action. We think that business welcomes the proposals as beneficial to the success of organisations, to filling skills gaps, to understanding customers needs and to creating a more diverse work force. However, to ensure that the provisions are not abused, we need to spell out the extent to which they apply.
Clause 153(4), which is the policy provision to which the hon. Gentleman referred, is there to ensure that there is not a blanket policy of favouring candidates because they have a protected characteristic, even if they are disadvantaged and under-represented as a consequence. An employer has to ensure that the candidate that she wishes to prefer is as qualified for the job or promotion as another person. For example, what if an employer has specified the requirements necessary for a job and two candidates meet her? Let us suppose that one has a protected characteristic connected to disadvantage or under-representation and the other does not. If the candidate with the protected characteristic is as qualified as the one without a protected characteristic, the permission to treat the candidate with the protected characteristic more favourably will step in.

Mark Harper: I want to ask about two things. The Solicitor-General said that business welcomed the provision. Both the BRC and the BCC support amendment 23 explicitly because it would make the situation clearer for business and they believe that that is important. The CBI, while not commenting specifically on the amendment, thinks that the Government should re-examine the clause to make sure that it is clear and that its members will not get in trouble when using it, for the reasons that I have outlined.
The hon. and learned Lady will correct me if I am wrong, but she has agreed that as qualified as means that a person has reached a point just above a hurdle. It does not mean that the candidates are equally qualified, but that criteria have been set for the jobwhether educational qualifications, skills or particular talentsand as long as the person is over the minimum hurdle, he will be able, if he has a protected characteristic, to be given an advantage. That system has lots of disadvantages. It is not the tie-break scenario that the Minister for Woman and Equality cited on Second Reading. It is quite differentit is the type of thing that gives equality a bad nameand easily turns the situation into one involving a pool of candidates with discrimination taking place in favour of one group and against another, which is dangerous.

Vera Baird: That is exactly what cannot be done because subsection (4)(b) prohibits such action. There is no danger of such a thing taking place lawfully under the Bill. Let me be as clear as possible. The hon. Gentleman says that businesses have requested clarity. Businesses tell me that they are already undertaking such a process. We must bear in mind that, when launching an assault on the provision, they are probably doing it unlawfully at the moment because no power is available for someone to be preferred because they have a protected characteristic, even granted the equality of merit. We need to be a little cautious about claiming where business overwhelmingly lies on the matter.
If a business is trying to target a particular community with its product, it is commonplace to identify a sales person from that community. It is a good thing for the business to appoint them to the job if they are as good as someone who is not from that community. By changing the wording from as qualified as to equally qualified to, the hon. Gentleman would reduce the provision to something that would really never work, nor have any application of great import, because it would be relatively rare that exactly identical qualifications occur.
The hon. Gentleman makes a point about a pool of candidates, but let us say that the test ought to be that both candidates have demonstrated that they have met the employers particular requirements for the post. That seems to be entirely the right approach. In that sense, both candidates who fulfil the employers particular requirements for the post will be as qualified as each other to fill the vacancy.

Lynne Featherstone: I want to clarify one thing. I tend to agree with the Solicitor-General, but if specifications and criteria were set out for the job, is she saying that as long as that criteria and specific requirements of the job specification were met, the employer would then be able to choose? That seems very broad compared with what I thought that the provision was about.

Vera Baird: But that is the hon. Ladys device, not mine. I have set out pretty plainly what the position would have to be. The employer would have ways of attracting people from the right pool and they would be as broad as he wished. He would have ways of short-listing people and getting them in for interview. There would be criteria all the way along, such as person specifications and job descriptions, all of which people would have to fulfil to reach the stage that I have described. That would be appropriate. Nothing much more could help further than the fact that both candidates demonstrated to the employer that they had met his particular requirements for the post.
There is a sort of false auraI am not saying that it is deliberatearound the whole notion of, Oh, does qualified mean academic qualifications? Oh, do they have to be absolutely the same, and how wide can the band be? We are talking about business, which is used to appointing people to jobs and evaluating one against another to see who crosses the line, who is absolutely right for the job and how many applicants reach that standard. We are not bringing the provision to a bunch of neophytes, and the people who will use it will know what they want from applicants. If they are satisfied that they have two or more candidates before them, they may, if they choose, use the voluntary process. It is not about having a blanket policy and it is not positive discrimination. What the clause provides for is not in the slightest bit dangerous. I hope that my explanation has removed any lack of clarity there might have been.

Mark Harper: The Minister has made things clearer, but not necessarily more helpful, and I will tell her why. I think that there is a qualitative difference. If there are two candidates who are equally qualified, or within a very narrow band, and one of the protected characteristics is used as the decider or tie-breaker, that will not lead to a situation in which it is felt that the better candidate did not get the job because of the protected characteristic. However, that changes as soon as the hurdle of a minimum requirement is introduced. If there is a wide spread of candidates, but they are all capable of doing the job, one who was much better than the others might not get it because a less good candidate who was still over the minimum requirement had a protected characteristic. We are talking about this being done by not only business, but any organisation. I am thinking about pubic sector bodies that might have a pubic sector duty on promoting people with particular protected characteristics.
That worry is flagged up in the specific example set out in explanatory note 508. The example is of a police service that employs disproportionately low numbers of people from an ethnic minority background giving preferential selection to a candidate from such a background after identifying several equally qualified candidates for recruitment. That preferential selection would not be unlawful, provided that the comparative merits of the other candidates were taken into consideration. The note states that the candidates were equally qualified. As soon as we use the term as qualified as, we are faced with a situation in which a less good ethnic minority candidate, albeit one who is still qualified for the job, could be given it.
I use that example because, as the Minister will know, it is a real example of what has happened to some of my constituents. Candidates might not be given a job or promoted in favour of a less good candidate from an ethnic minority background. Apart from being wrong in principlein my viewnothing is more guaranteed to give the provisions of the Bill a bad name than that sort of behaviour. The way in which she has explained the clause shows that that sort of behaviour would be lawful.

Vera Baird: To refer to that as that sort of behaviour does not give due credit to the fact that it is a positive step forward. To suggest, as the hon. Gentleman has done, that there will never be resentment if it is only used as a tie-breaker is wholly unrealistic. Often, people think that they did not get a job because the successful candidate is younger, prettier, taller, blacker or gayer than they are, so there is really no guarantee that changing the wording to equally qualified will remove such resentment.
If a candidate is, as the hon. Gentleman suggested, clearly superior or better qualified, and if the employer does not consider that person over-qualified for a job, in which case they are entitled to choose at the right level, common sense suggests that they will not be as qualified as the other person, because they are clearly superior. It is not difficult to separate people who are as qualified as each other from those who are not. We are not talking about simply crossing some sort of low threshold that will let hordes of people in, and making it a clear blanket policy involving hordes of people within a massive band of ability being preferred over hordes of people from another group who are in the same massive band of ability. We are talking, very sensibly, about somebody who meets the employers particular requirements for the post, and somebody else who meets those requirements; it could be one on one, two on twoit makes no difference.
If an employer wishes to choose between people who, in his view, are as qualified as each other, he can choose somebody from an under-represented group. This is an excellent provision that will protect a lot of businesses that do this now out of common sense, and I hope it will encourage not only other businesses but people from the public sector to do it, as well.
Suppose there were a practice of looking at groups of people and deciding that they were all within a range of ability, and that it would be just as easy to pick somebody from the bottom as from the top of that range. Someone could help themselves to a white person over a black person, a man over a woman, or a gay person over a straight person, but they would be implementing a policy that is not allowed under clause 153(4)(b). There is a distinction between two equally qualified people, and operating a policy that has as qualified as in the middle of it. In my view, it is quite clear what is available and what is not, and I hope that there can be no serious doubt about that.
I suggest that this is the right phraseology to use. It allows the appropriate flexibility and will make the provision useful. To narrow it down in some way to require identical qualificationswe need only to say the word to be clear that one would rarely get people who are absolutely identically qualified. On the question of whether that means academic qualifications, of course it does not. It means identically qualified for a particular job, and that just will not happen often. The impact of the clause must be far broader than that. I invite the hon. Gentleman to see that this is a useful and good measure.
Amendments 31 to 34 are about limiting ministerial flexibility in deciding where the use of the harmonisation power is appropriate, and its timing and extent. They would require the Minister to demonstrate at each stage how the requirements of the clause are being met in each case. The Ministers reasons would therefore be subject to challenge in the courts on an objective basis.
The point of the provisions is to give future Equality Ministers the flexibility they need to ensure that the Bill remains coherent and harmonised legislation in the years ahead. I know that the hon. Gentleman does not like the turn of phrase, The Minister is required to thinkI tell the Committee that it is not easy at this time of nightbecause he thinks it a whimsical or subjective measure. However, although it is an odd way of putting it, the point is expressed correctly because the thinking has to be rational. It must be capable of resisting judicial review on the basis that it was irrational, or that it did not take everything necessary into account. It must not have left out something that should not have been left out of account, and must be otherwise not unreasonable. If that thinking process is not a public law compliant way of thinking, which, as one my officials said to me outside the Committee, is how I always think anyway, it will not work. It is not a casual process at all.
We can offer more reassurances. The initial trigger would be a thought process of that kind for the Minister following advice. None the less, the power can be used only where a Community obligation is to be implemented through the regulation-making power under section 2(2) of the European Communities Act 1972. That obligation must be one that the Minister thinks relates to the subject matter of the equality Actsthe Bill and the Equality Act 2006but the existence of implementing regulations to be so made will be a matter of fact.
The power can be used only where the Minister thinks it appropriate to make harmonising provision in the equality Actsthe same thinking againfor instance, where there is extra provision in the equality Acts that goes beyond the subject matter of a Community obligation, but which is part of the provisions that must be amended to comply with the new Community obligation. This situation could arise in the area of racial discrimination; currently, the Community provisions do not address nationality or colour, but the UK always has. To preserve our harmonised approach, we might need to use this power. It is inherent in the exercise of such a power that the Government will need to demonstrate why the use of the power is both appropriate and necessary, or expedient in those circumstances.
I understand why the hon. Gentleman might wish to strengthen accountability where a Minister thinks that the urgency of the situation requires circumvention of the normal 12-week consultation period. However, it is not a thinking process that can just come to someone over breakfastAlthough I have just set about the consultation process, I will abrogate it now, because I think we should move forwardit has got to be a completely rational decision-making process, and it is there for urgent situations when, by definition, there will not be the opportunity to demonstrate formally and objectively all the evidence that the consultation might have put up. Ministers will have to report to Parliament every five years on the exercise of the power over the previous five years.
All regulations giving effect to this power will have to be laid before and debated by both Houses of Parliament. As with the consultation process to which I have just referred, the Minster will have to demonstrate that the regulations under section 2(2) of the 1972 Act trigger a need to retain harmony through the use of this power, and that the adjustments proposed are necessary. The debates would provide Members with opportunities to probe where, for instance, the 12-week consultation has been shortened.
There is a lot more accountability built into the provision than might at first appear the case, when all one has to do is to have some rational ministerial thinking, and that particular piece of language does not provide the complete picture; I hope I have now satisfactorily done so. I know that the hon. Gentleman feels strongly that the requirement should be about more than just being over a threshold. I hope I have satisfied him. It is about more than being over a threshold; it is about the employers depiction of what he needs in that jobpeople who are as qualified as each other in every way to fit that job, but who might fall short of being identical. If they had to be identical, the power would never be used.

Diane Abbott: I listened with interest to the hon. Member for Forest of Dean. I say to him very gently that, in expressing a panic about under-qualified black people getting jobs over highly qualified white people, he is not just out of step with people such as me, who, I admit, have spent a lifetime campaigning for racial equality; he is out of step with the most advanced thinking among managers in both the private and the public sector. I speak with some knowledge, because I try to work on these issues particularly in relation to employment opportunities for young people and ethnic minority professionals.
Our top international accountancy firms understand perfectly well that they cannot compete for business in the emerging markets of Brazil, China and Africa with partners and senior people who, with the greatest respect, all look like the hon. Gentleman. If we are competing, as global British companies must, in an international market, we must be able to demonstrate a diversity at the very top and in middle management. Otherwise, people will say that these international companies are, in some sense, stuck in the past.
Whether it is international financial services companies or international retail companies, they understand that if the majority of their customers are women it makes sense to tap into the knowledge and experience of qualified female professionals, whether at senior management level or at board level. Whether it is people providing services in the public sector, knowing that in our great cities they are trying to provide services to a multicultural clientele who all pay their taxes and are all entitled to a good service, or whether we are looking at the private or the public, increasingly, progressive management understands that being able to recruit a more diverse work forcenot just at the bottom, but in middle management and at the very topenables them to compete better, do their business better and provide a better service to people.
On the question of qualifications, progressive management also understands that it is not just a question of necessarily having formal experience or formal qualifications. Other attributes and other added values are involved when people consciously try to recruit a diverse work force.
I put it to the hon. Gentleman that in expressing the fear that underskilled and underqualified tinted people will take jobs from his constituents, he shows that he is not keeping up with where management is and where the bosses of some of our biggest international companies are at this time.

Mark Harper: I cannot be quite as brief as I had intended, because I need to deal with the points that the hon. Lady has made.
I chose the example that I did not because I was just picking randomly the idea of a less qualified black candidate, for example, getting a job from a better qualified white candidate. I used it because I had a specific case in my constituency and because my constituency does not have a terribly diverse populationit is 99.6 per cent. white. It was hardly surprising that the case involved a white person being discriminated against. That is why I chose that example; I had no ulterior motive in choosing it.
Anticipating the particular argument that the hon. Lady made is exactly why I took the trouble when we debated clause 152, which is on general positive action measures that can be taken, to say that I am in favour of those measures. I am in favour of companies taking steps to have a more diverse work force and I made that clear in the debate on clause 152.
We are now specifically discussing my concern that in making specific hiring and promotion decisions when there are a number of candidates, some of whom are demonstrably better than others, people will be able to prefer the less good candidate, of whatever colour and of whatever protected characteristic, rather than choose the better qualified candidate who does not have that protected characteristic. I do not think that that situation is very helpful.
If candidates are equally qualified, a decision must be made based on something. At least the protected characteristic is objective, rather than the employer just liking a person better. Other than that, this situation stores up a lot of dangers. However, that does not mean that I am not in favour of employers taking lots of positive steps, as the hon. Lady correctly said. I just think that the situation I have described is a step too far.

Diane Abbott: Briefly, the notion of less qualified and better qualified candidates can be highly subjective. Years ago, before I came to the House, I worked for the big London television company, which was called Thames Television. When I first went to work for that company, the head of news and current affairs was a tall, thin, cerebral man with a Cambridge degree. He systematically promoted to the editorship of programmes and to head of department tall, thin, cerebral men with Oxbridge degrees. When that man left and his post was taken over by a rotund, northern, beery ex-tabloid journalist, lo and beholdthe people he thought were better qualified were people in his image. Had he spent as much time as I have examining these issues, he would have known that the propensity of people to promote in their own image and justify it by some subjective notion of qualifications is one of the big issues when it comes to diversity.
I welcome the provisions in the Bill. As I have said, some managers and some employers might have problems with them, but if the hon. Gentleman talks to our biggest companies and our most advanced management, he will find that they understand that these provisions can help themnot to be nice to black people and ethnic minorities, but to make businesses better, more successful and more competitive, thereby providing a better service and ultimately making more money for their shareholders.

Mark Harper: I do not disagree with a lot of what the hon. Lady says, but I still think there is a distinction between what we talked about on clause 152 and this clause. I will not pursue the debate because we will not agree and I detect that other members of the Committee would like us to move on.
The only thing I would like to say on amendment 29 is that P must think reasonably. The Minister made great play of the word reasonably, yet under clause 191, when it is the Minister thinking, the word reasonably does not appear. Perhaps we can explore that more when we reach that clause.
On amendment 23, I will think again about whether subsection (4)(b) checks the use of subsection (4)(a) and so deals with the problem that I described. My concern was that if there is pool of people the fact that a policy is not possible effectively means that systematic discrimination is not possible. The Minister has planted some seeds there on which I will cogitate. I will withdraw amendment 29, but I may wish to press to a vote one or more of amendments 31 to 34 when we reach clause 191. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Featherstone: I beg to move amendment 301, in clause 153, page 113, line 17, leave out paragraph (b).

Ann Winterton: With this it will be convenient to discuss amendment 302, in clause 153, page 113, line 23, at end insert
(ca) offer work to a voluntary worker.

An amendment to allow positive action in the recruitment of volunteers.

Lynne Featherstone: The points are relatively brief, everyone will be relieved to hear. The first amendment would remove the now famous subsection (4)(b). This is really a probing amendment because we have not been able to understand the effect of the proposal. Subsection (2) applies only if P does not have a policy of treating persons who share a protected characteristic more favourably in connection with recruitment or promotion. If P did have such a policy it would presumably be illegal. Why would someone who did not have that policy want to apply subsection (2) anyway? I hope the Minister gets my drift on thatpossibly, possibly not.
The amendment is probing because there is a lack of clarity around this. I note that the hon. Member for Forest of Dean is going to think about it some more. We have not been able to identify why subsection (2) can be applied only if someone does not have such a policy. If one does not have a policy of wanting to promote people, why would one apply subsection (2), as it is enabling legislation rather than mandatory?
On amendment 302, we discussed the recruitment of volunteers and whether the protection from discrimination extended to them. I was grateful to the Minister for saying that it did extend to volunteers, but this application of positive action does not seem to extend to the recruitment of volunteers.
If I am taking on interns I will not be able to apply positive action to interns who are as qualified as each other to bring them into my office. Volunteering plays an important role in opening doors and giving access to different worlds, experience and accreditation, which is why it is so productive, particularly for young people. It presents opportunities to advance careers and get skills and training. It would be a good thing if organisations were allowed to take positive action when particular groups were under-represented in their place of work.

Vera Baird: Amendment 301 would wreck the positive action stance that we have taken by allowing a policy of habitually treating somebody with a protected characteristic more favourably in connection with recruitment or promotion than people who do not share it, irrespective of merit. What the hon. Lady is struggling withI understand the pointis why, if the individual who wanted to make an appointment was not willing to use the provision, would they ever use it? She is equating that willingness with having a policy of using the provision. However, using such a provision requires an organisation to do it by assessing merit and then comparing only those who are as qualified as each other. If a company has a policy of appointing someone because they are black or a woman, they are acting unlawfully. Paragraph (b), which the hon. Lady seeks to remove, is about ensuring that merit is in place.

Lynne Featherstone: It is the does not have a policy that I am confused about. I am talking about subsection (4)(b), which says:
P does not have a policy.

Vera Baird: The person can use positive action as long as they use positive action only and do not have a policy of positive discrimination.
Amendment 302 is about the difference between volunteers and employees. The other week, we discussed whether we should involve volunteers. I think that the hon. Lady appreciated that, given the range of volunteers, it is difficult to fit them into the legislation. If we were to do so, it could have a chilling effect on them coming forward. We are talking here about the difference between a volunteer, who comes and offers their services freely to causes that are special to them and does not look for remuneration, and people who are looking for a real opportunity and a contract with remuneration. One can see how positive action is a more relevant tool to the second category and much less to the first. I ask the hon. Lady to consider that it is not necessary to have amendment 302 either.

Lynne Featherstone: Got it. I thank the Minister for removing the clouds from my brain with regard to paragraph (b). All I was seeking was to ensure that there would be no illegality were I to use positive action to choose a volunteer who had a protected characteristic but who was as qualified as any other applicant for, say, an internship. I want to ensure that I would not be in jeopardy were I to use that method of selecting a volunteer. As far as I can understand the Minister, I would not be in any jeopardy. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 153 ordered to stand part of the Bill.

Clauses 154 to 156 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.(Lyn Brown.)

Adjourned till Thursday 2 July at Nine oclock.